Book launch: Australia's War Crimes Trials 1945-51 The Hon Sir Gerard Brennan AC KBE GBS

We are gathered on this sacred site to launch a study of a neglected but important chapter in our national history. Here we remember particularly those who gave their lives to preserve our nation and its freedoms. Here, in earlier times, the Ngunnawal people occupied this site as traditional owners whose elders, past and present, we acknowledge and respect.  They have welcomed this Memorial to inform and preserve the history of themselves and other Australians who have been involved in the defence of our nation.

The Second World War was like no other before it. Australia was under imminent threat of invasion by Japanese forces who had rapidly overcome the Allied forces in their southward march to Papua New Guinea. Between February 1942 and November 1943, the Australian mainland was subjected to 97 raids by Japanese aircraft. In May 1942, Sydney came under attack from three midget submarines and their mother ship. In time, the Japanese were repulsed by Australian and other Allied forces which recaptured much of the territory occupied by the Japanese. In August 1945, the Japanese surrendered. Brutality, cruelty and disregard of human dignity marked many of the events occurring during Japanese occupation of conquered territory. Information about the atrocities allegedly committed by the Japanese forces was censored during the war but the restricted information which came out sufficed to outrage the Australian people and their Government.

The Allied Governments had declared in 1942 that “punishment [of war criminals], through the channels of organized justice” was amongst the principal aims of the war.  In June 1943 Sir William Webb, Chief Justice of Queensland, was appointed to inquire into Japanese war crimes.  In September 1945, a Board of Inquiry (known as the Australian War Crimes Commission) was appointed with Sir William as Chairman and some additional judicial members to inquire into Japanese war crimes, the categories of crimes being specified in the relevant instrument.

The 1945 Potsdam Declaration of the Allied powers affirmed that Japanese war criminals would be brought to justice.  The Australian Government resolved to establish military courts for the trial of Japanese war criminals.  Accordingly, the War Crimes Act 1945 was enacted and 300 trials were conducted under its provisions. This scholarly book tells the story of those trials. It is a book of more than 800 pages, accompanied by vital appendices and indices. The quality of the research is outstanding and the authors show such intimate familiarity with the circumstances that they would have had a daunting task in determining what to omit.  Though well written, it is not an easy read. Given the subject matter, that is not surprising. We are interested in history, as it occurred, and it is the history of important steps taken by former enemies on the pathway to peace.

The authors have contributed essays on particular aspects of the trials and the editors have assembled those essays in three Parts. The first Part deals with what I might call jurisdictional and thematic issues; the second Part deals with the trials that took place in the eight locations chosen for the purpose, and the third Part consists of assessments of the trials and the processes under which they were conducted.

The first part includes an exposition of some issues which explain the command structure and culture of the Japanese forces. Japan was anxious to secure vital natural resources and employed its considerable military strength to do so. Imperial Japan was ideologically headed by the Emperor and “[a]ny order from a superior was ...imbued with the authority of the emperor” (p56). Thus Japanese commanders expected unquestioning obedience. And soldiers “were subjected to a series of measures and controls designed to remove from a recruit any sense of individuality or critical thought.”  (p46).Training had the objective of moulding “a fighting man whose highest duty was to die an honourable death for the emperor” so there was a “moral expectation that Japanese soldiers would not be captured alive.” This culture affected the Japanese response to prisoners of war who had been surrendered into their custody. And after an American B-25 raid on Honshu Island in April 1942, an especial hostility to captured airmen developed and spread throughout the Japanese forces. This command structure and culture serves to explain some of the cruelty of the Japanese forces.  A Japanese prisoner who had been tried and was to be executed on Manus Island observed: “Even if the trials were not undertaken with a sense of retaliation, the different ways of thinking between Japanese and Westerners, and the difference in culture and the military command system at the time, etc, surely led to our disadvantage.”

The Potsdam Declaration made it clear that it was legitimate for individual nations to provide domestic laws and mechanisms for the punishment of war crimes. The mechanism chosen by Australia was the setting up under Commonwealth law of military courts to deal with war crimes under a special statutory procedure, convictions and sentences being subject to confirmation by the Commander in Chief of the Army. Tim McCormack raises the question whether the Commonwealth was constitutionally empowered to enact the War Crimes Act. That depends on the scope of the defence power under s 51(vi) of the Constitution, perhaps assisted by the foreign affairs power under s 51(xxix). Tim McCormack cites a passage from the High Court’s judgment in R v Foster; ex parte Rural Bank of New South Wales (1949) 79 CLR 43, 82-83:  “The Constitution does not confer …any power in express terms to deal with the consequences of war, but there are some consequences which undeniably fall within the scope of the legislative power with respect to defence.” Tim McCormack argues powerfully that a law for the prosecution of enemy war criminals would properly be regarded as having a purpose incidental to the defence of the nation. An opposing view seems untenable.

He canvasses another constitutional problem which has been the subject of controversy up until recent times: can the Commonwealth create a military court akin to a field general court martial if that court does not fulfil the requirements of Chapter III of the Constitution which governs the exercise of the judicial power of the Commonwealth?  A court martial exercising clearly disciplinary powers over service personnel and organized within the defence hierarchy is constitutionally outside the operation of Chapter III, but as both Tim McCormack and Georgina Fitzpatrick point out, the Court created by the War Crimes Act can be distinguished from a court martial since it tried enemy combatants and could impose penalties not available to a court martial, including the death penalty.  Although the Chapter III argument was raised by the defence in some trials, it was dismissed on the ground that the Court was bound by the Act under which it was created.

War crimes were defined by the War Crimes Act. They included “any violation of the laws and usages of war” but as the relevant law was still in a state of development the Act included in the definition crimes which fell within the ordinary conception of war crimes. Those specific crimes were taken from the list that had been assigned for investigation by the Australian War Crimes Commission. The crime of cannibalism was added.

The courts then had to determine who were to be held responsible for these crimes. Gideon Boas and Lisa Lee point out that, at the time, “there was no established doctrine of command responsibility”, but judge-advocates drew on a number of sources to provide the forensic framework within which the responsibility of commanders could be determined. Some Convention provisions, though vague, indicated the duty of commanders to see to the proper observance of Convention obligations, and reliance was placed on the Manual of Military Law” and the classical work of Archbold that was in use in trials in civil courts. Reference was made to the American Supreme Court decision in the case of General Yamashita. The Australian courts rejected the proposition that commanders were absolutely liable for the acts of subordinates.  But the existence of command duties, the concept of due diligence and the common law doctrine of mens rea meant that the Court should determine the actual role played by a commander in the commission of a war crime by a subordinate, including the Commander’s ability to prevent the commission of the crime .  Thus General Imamura, in Rabaul, was convicted after the Judge Advocate said that he “did not take ‘positive action’ to prevent the crimes [so that] an ‘inescapable inference’ arose that Imamura had been ‘culpably disregardful’ of his command duties.” (p145)

At the times of the trials reported in this book, the defence of obedience to superior orders was “in the midst of an historic shift”, according to Monique Cormier and Sarah Finnin. Prior to World War II, obedience to a superior order gave a complete defence to the subordinate who committed a war crime.  Oppenheim’s authoritative treatise so stated, but the author of the 6th edition, Hersch Lauterpacht, reversed that view. (Oppenheim’s International Law 6th edition vol 2 pp453-455). He accepted “the fact that obedience to military orders, not obviously unlawful, is the duty of every member of the armed forces and that the latter cannot, in conditions of war discipline, be expected to weigh scrupulously the legal merits of the order received… the members of the armed forces are bound to obey lawful orders only and they cannot therefore escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity.” The “manifest illegal” principle outlined by Lauterpacht was accepted by Australian and British military law. In theory, perhaps a subordinate’s honest and reasonable belief that an order was lawful might negative the mental evil (or mens rea) of the crime and thus exculpate the subordinate, but the cases cited by the authors show that in practice the courts rejected the plea of superior orders as a complete defence, while assessing punishment in the light of the rigorous Japanese insistence on obedience to superior orders.

The authors set the legal framework for the military courts and that is followed by essays describing various aspects of the trials, including references to some of the most significant trials.  Most of those essays, including the whole of Part 2, were written by Georgina Fitzpatrick.  It is a work of prodigious research. It makes for some grim reading, but essential to appreciate the depravity of the human conduct which the prosecutions exposed and the appropriateness of the process that brought a measure of justice.

It is not possible to summarise this vast volume of material but I would mention some of the issues covered by these essays. Tristan Moss and Georgina Fitzpatrick canvass the fate of captured airmen who were subject to the particular antipathy of the Japanese; Yuma Totani writes of the treatment of Chinese Labourers and Indian POWs who were forced into labour for the Japanese military; Georgina Fitzpatrick attributes most of the incidents of cannibalism to the starving and exhausted condition of the Japanese troops in the later stages of the battles in New Guinea. Then Part 2 deals with the trials at each of the eight locations chosen having regard, inter alia, to the location of the crimes that were to be prosecuted. Thus the crimes committed during the construction of the Burma-Thailand Railway were prosecuted in Singapore and the trials in Labuan dealt with the death marches between Sandakan and Ranau and the execution of surviving POWs in Ranau. The largest number of trials took place in Rabaul, including the command responsibility trials of Generals Imamura, Adachi and Baba. Rabaul had the advantage of being territory under Australian military control, whereas Morotai and Labuan were in Dutch colonial territory and the British were the colonial masters of Singapore and Hong Kong. Australia was under some pressure to quit the colonial territories and, by General Macarthur’s decision, no Australian trials were permitted in Japan. Indeed, the last of the trials were located on Manus Island (or Los Negros, a small island separated by a few metres from Manus) because Macarthur threatened to release the prisoners held by Australia in Sugamo prison unless Australia moved to dispose of the pending prosecutions. Macarthur had his staff sort through the cases against the Sugamo prisoners, agreeing to send 9 serious cases for trial and intending to release the other prisoners. Ultimately, the cases selected for trial were cases “in which Australians were murdered and in which conviction appears probable and the court might appropriately award the death sentence.” 93 accused were selected to stand trial.

Tim McCormack and Narelle Morris record that in the 300 Australian trials, acquittals were pronounced in respect of approximately one third of the 1140 charges laid and one third of the 952 persons charged (some being counted twice). Sentences of imprisonment or death were imposed on those convicted. The Commander in Chief of the Army was given sole authority to confirm death sentences. The Australian military had never before carried out a death sentence but 137 executions, some by hanging, others by firing squad, had to be organized.

Georgina Fitzpatrick undertook the writing of an essay on the death sentences.  That task was, she acknowledges “at times confusing to the emotions. Men who had been found guilty of appalling atrocities were nevertheless revealed as sensitive men, able to compose moving last letters to their loved ones.  Australian authorities, in putting together instructions for the executions, could make room for compassionate gestures.  All but a few of the toughest Australian officers found the whole matter distasteful but necessary.”

Part 3 contains the provocative chapter: Were the Australian Trials Fair? Is that question directed to each trial or to the 300 trials en masse? As Narelle Morris and Tim McCormack observe: “one must assess each trial series itself, if not each trial, to decide whether it was fair and just in all the circumstances.” I respectfully agree.  I suggest that the fairness of criminal trials can be assessed only in reference to particular trials and by reference to the particular circumstances of each trial. But that is not the objective of the question posed by the authors. They are trying to assess the trials en masse. And that question - whether the 300 trials were, as a whole, fair and just - cannot be answered without defining the standard by which fairness is to be assessed. The authors advance four factors to suggest that the series of 300 trials were “as fair as might be expected given the particular circumstances of the immediate post-war period and in comparison to other Allied military practices”.

The four factors should be briefly mentioned. First, the application of well established jurisdiction regarding conventional war crimes. Although the definition of war crimes in section 3 of the War Crimes Act included the novelty “crimes against peace”, in practice the Australian trials dealt only with conventional war crimes. Nevertheless critical areas of the law relating to command offences and superior orders were developed as the trials progressed. Second, procedures did not change throughout the period of the trials. That is substantially correct, but the procedures themselves require consideration. Third, dedication of trial personnel – a factor of immense significance.  If suggestions that decisions were dictated by vengeance are made, as they have been, the best assurance to the contrary is the professional expertise and fairmindedness of those engaged in the several aspects of the trial process.  If the trials had been motivated by revenge, that should have been obvious in the trials immediately after the end of hostilities. At the first series of trials, held at Morotai, there is evidence to show the propriety of the participants. The Japanese defence team wrote to the prosecutor, Captain John Williams, commending his “acute, fair and logical prosecution.” Defence counsel Captain Brown in the very first trial raised the constitutional arguments against the court’s jurisdiction. Warm letters of appreciation from accused Japanese were sent to their counsel. A memorandum written by Captain Campbell quotes his clients’ assurance that he “not only said all that we would have wanted said, but also pointed out things that we could not possibly have thought of, every one of the accused is absolutely satisfied.” The judge advocate at the early Morotai trials was Major Kenneth Townley whose summing up “became a model for later judges-advocate.” In 1949 Townley was appointed a judge of the Supreme Court of Queensland and in 1950 as Brigadier Townley he presided with distinction over the Manus Island trials. I was privileged to be his Associate and to admire his impartial presidency, his legal knowledge and his forensic skill. If I may mention my observations at that last series of trials, the propriety of the participants was beyond question. Under Townley’s Presidency, it could not have been otherwise. I witnessed the withdrawal of Major Grey Schneider from the court when he thought he was too close to the crimes being prosecuted. Day by day I observed the selfless devotion of the defence liaison officer, Major George Dickenson, as he assisted the Japanese defence team. He visited Japan in later years, being feted by the counsel he had assisted.  He commented in an article published in the Australian Quarterly in 1952[1]:

“It was a good thing for Australia that the War Crimes Court at Manus had as its president an able and experienced lawyer and Supreme Court Judge, and it was indeed fortunate that he was assisted by a bench of fair-minded officers, all with battle experience in the Second World War. 

There is ample evidence that the personnel involved in the Australian trials were generally fair minded people who discharged their respective duties conscientiously. 

The final fact suggesting general fairness in the trials is the high rate of acquittals and successful petitions to overturn findings or to commute or mitigate sentences.  Even in the Manus trials, selected having regard to the probability of convictions and death sentences, nearly half the charges resulted in acquittals and only 5 death sentences were carried out.

These factors justify the conclusion that revenge and anger did not generally pervert the course of justice in the Australian trials. That conclusion is true of the generality of the trials even though there were some few cases where judges exhibited bias, and a few cases where too many accused were tried together, and even though there was some disparity in sentencing and there were instances of inadequate translation. But does the absence of revenge and anger establish that the trials were fair and just?

The procedure of the trials allowed for proof of the charge by the use of hearsay evidence and in many, if not most, of the trials the prosecution case was established by tendering affidavits unsupported by oral evidence from the deponents. Section 9(1) of the War Crimes Act provided:

“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.”

Most prosecution cases rested on statements inculpating the accused made by witnesses who were not in court.

To deny an accused person the right to confront his accuser and to test the accuser’s evidence by cross examination is, by any standard, unfair to the accused.  The authors remind us that we should not make a judgment based on modern standards of fairness instead of the standards of 60 years ago. But the right to confront an accuser is not of modern invention -– it goes back at least to Biblical times. Removal of that right modifies the onus of proof in practice if not in theory, the manner in which the statement of the accuser was obtained is hidden and the court cannot determine the veracity of the accuser. At common law, an accused person’s right to a presumption of innocence until the presumption is displaced beyond a reasonable doubt is protected by the ordinary evidentiary rule. The procedure under s 9(1) destroyed that protection and if fairness is judged by the common law, the procedure of the trials was unfair.

But I suggest that the common law is not the standard by which to judge the fairness of the trials. The authors recall that the United Nations War Crimes Commission suggested that “the rules of evidence were not relaxed so as to render ‘any unfairness’ to the accused; rather, the ‘aim’ was to ‘ensure that no guilty person will escape punishment by exploiting technical rules’.” Precisely. The purpose of s 9(1) of the War Crimes Act was not to make the trials unfair but to ensure that the perpetrators of the many atrocities which had been uncovered should be punished provided a court like a field general court-martial was satisfied that the accused was guilty of the offence charged. In the post-war period, that purpose would not have been fulfilled if the ordinary rules applied. The numerous witnesses required were not practically available. In any event, the possibility of wrongful conviction was substantially averted in practice by the accused himself going into the witness box and perhaps calling witnesses or utilising s 9(1) by tendering written statements. In other words, s 9(1) led to the courts’ ability to ascertain the accused’s story and to determine his guilt.  If fairness is to be judged by the likelihood of a correct determination of guilt or innocence, as I suggest it should, the provision is unimpeachable.

The Australian trials have been said to be instances of victor’s justice and that description reflects the fact that the trials were designed to punish atrocities committed by the defeated enemy’s forces, but they cannot fairly be said to be generally unfair in convicting and punishing those who were innocent or whose punishment was disproportionate to contemporary expectations.  If that be a reasonable assessment of our nation’s response to the crimes that were dealt with, we played a reasonable part in drawing a line under the past and renewing our relationship with our former enemy. 

Wars and war crimes excite grievous passions, and they may last for generations. But they may be quietened by accurate account of relevant events.  We are indebted to the authors of these essays who have given us a valuable chapter of our history. I am honoured to launch “Australia’s War Crimes Trials 1945-1951” and I offer my respectful congratulations to the scholars who contributed.

 


 

[1]               Vol 24 No 2 p 69-75.

Format: Transcript

Date: Tuesday 29 November 2016

Speaker: The Hon Sir Gerard Brennan AC KBE GBS

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