2 The Australian War Crimes 'Webb' inquiries, 1943–46
Image 2: Sir William Webb, c. 1947.
NAA: C1748, PERSONALITIES/L8305
After the initial Army investigations into Japanese atrocities in early 1942, Australia's national program to investigate alleged Japanese atrocities and war crimes got firmly underway in 1943.18 In response to a request by the Army in March 1943, Prime Minister John Curtin asked the Acting Attorney-General, John Beasley, in April 1943 to suggest a 'suitable judicial appointment' to undertake an inquiry into alleged Japanese atrocities.19
Justice Roslyn Foster Bowie Philp of the Supreme Court of Queensland initially agreed to take the commission but withdrew when he became aware that the nature of the inquiry meant he would have to take evidence in New Guinea, which he was not prepared to do.20 Sir William Flood Webb, Chief Justice of the Supreme Court of Queensland, then agreed to undertake what became known as the Commission of Inquiry into Japanese Atrocities (CA 3866), which later became known more colloquially as the First Webb War Crimes Inquiry, after he had taken on the second commission.21
Webb was commissioned by Mr Beasley on 23 June 1943 pursuant to the National Security (Inquiries) Regulations 1941 (Cth).22 While Webb's commission to conduct a government inquiry was publicly known (as Chief Justice, he could not just abruptly disappear from his position for lengths of time), the press was prohibited from speculation on the subject of the inquiry under a censorship instruction which was issued on 1 July 1943. The censors themselves were privately informed that the inquiry related to atrocities.23 Indeed, Webb himself had 'raised the matter of undesirable premature publicity' in relation to the inquiry and 'recommended censorship of any further additional reference to his appointment'.24
Mr Keith G Brennan, who was legally trained, was seconded from the Department of the Army as Secretary to the Commission. Brennan had been associate to the Minister for External Affairs and Attorney-General Dr HV Evatt, when Evatt was a justice of the High Court of Australia from 1936 to 1940. Brennan later became a senior member of the Department of Foreign Affairs, including Australian ambassador to Ireland and Switzerland.25
Mr Edwin JD Stanley of the Queensland Bar (later a judge of the Supreme Court of Queensland) was briefed by Mr Noel T Sexton of the Deputy Commonwealth Crown Solicitor's Office to assist the Commission.26
Webb was instructed to inquire into whether there had been 'any atrocities or breaches of the rules of warfare on the part of members of the Japanese Armed Forces in or in the neighbourhood of the Territory of New Guinea or of the Territory of Papua'.27 During the course of the inquiry, Webb examined 471 witnesses, including Australians and Americans, at Brisbane, Rockhampton, Yungaburra, Sydney, Port Stephens, Melbourne, Port Moresby and Milne Bay, and considered 100 exhibits.28
Although Webb was designated the Supreme Court's Vacation Judge over Christmas in 1943 (that is, he was on call to deal with urgent judicial matters), he reported to the Secretary of the Attorney-General's Department and Solicitor General, Sir George Knowles, that he was 'giving the whole Vacation to the Atrocities Report', as there was a 'vast amount of evidence to consider' – in fact 'seven times as much as was anticipated' when he was approached to take the commission.29 Knowles responded that 'When I wished that job on to you I had no idea that it would prove such a huge task' but thought that Australia was very fortunate in having appointed him.30
The connection between Webb and the atrocities inquiry was finally made public on
31 January 1944, when Prime Minister John Curtin responded to accounts of Japanese atrocities revealed in the United Kingdom and the United States of America with his first detailed public comment on the subject.31 On the same day Evatt, as the Minister for External Affairs and Attorney-General, issued a lengthy statement on Webb's commission, including the comment that Japan's record of 'crimes and barbarities':
demonstrates Japan's complete lack of civilised practice and stands as an indictment against the whole Japanese military administration and warrants the condemnation of the civilised world.32
The first Webb report, entitled 'A Report on Japanese Atrocities and Breaches of the Rules of Warfare', was presented to the government on 15 March 1944.33
Webb accepted an extension of his work on 24 February 1944 and was instructed in his new commission on 8 June 1944 to inquire into whether:
there have been any war crimes on the part of individual members of the Armed Forces of the enemy against any persons who were resident in Australia prior to the present war, whether members of the Forces or not.34
The inquiry specifically encompassed the Japanese sinking of the hospital ship Centaur off Queensland in May 1943.
The deliberate broadening of the scope of the inquiry was to cover all matters that were within the purview of the United Nations War Crimes Commission in London (discussed in Chapter 3), in order to facilitate Australia's official submissions on war crimes concerning Australians to the United Nations commission. Webb's second appointment did not appear to be subject to censorship, for both his appointment and the subject matter of his inquiry were publicised.35
Counsel was not briefed for the second commission, although Mr Sexton continued to assist. In July 1944 the commission's secretary, Keith Brennan, was replaced by his brother John M Brennan, who was also legally trained. However, John Brennan suffered from repeated attacks of malaria and resigned in December 1944, without an immediate replacement. During the inquiry, Webb examined a further 110 witnesses at Melbourne, Sydney, Yungaburra and Brisbane.
By early 1945, Webb seemed to have become either weary of war crimes or of juggling government inquiries with his judicial workload in Queensland.36 After a tiring trip of several months to London to report on his work to the United Nations War Crimes Commission, he wrote to Evatt indicating his wish to retire from the position of war crimes commissioner.37 Webb suggested that Brigadier E Gorman, a Victorian barrister in civilian life, or Mr JV Barry KC of the Victorian Bar could replace him as commissioner,38 and even personally sounded out Barry.39 Evatt apparently suggested to Sir William Glasgow that he might take over as commissioner.40 At the same time, however, Evatt urged Webb to continue his war crimes work with the comment:
I hope very much that you will continue the investigation of war crimes. You have established an outstanding reputation here in regard to the preparation and presentation of Australian charges and … it would be most regrettable if you were to give up after acquiring valuable knowledge of all aspects of this work.41
Webb responded that he greatly valued Evatt's response and reported that he was continuing to work concurrently on his commission and his judicial duties. Notwithstanding his attempt to retire as commissioner, Webb seemed to imply that he would continue, when he stated 'assume your government will agree to further appointment [of] acting judge [to the Supreme Court of Queensland] should war crimes investigation require my whole attention'.42 Evatt responded – probably with some relief that the status quo would continue – 'Will assist you and Queensland Government in every way possible'.43
The Queensland Government, however, was very reluctant to agree to Webb taking more time away from his judicial duties, citing the heavy workload of the Supreme Court. The Acting Premier, Edward Hanlon, advised the Prime Minister that, while the matter had been very carefully considered, the Queensland Government was 'unable to accede to the wishes of the Commonwealth Government' to release Webb from his duties.44
Strong persuasion was applied by Acting Prime Minister, Ben Chifley, who pointed out that bringing the Japanese responsible for atrocities to justice was a 'matter of supreme importance to the country as a whole' and that Webb's experience meant he was the 'man most competent to carry out the important duties of War Crimes Commissioner'.45 The Queensland Government eventually agreed to Webb 'continuing to do war crimes work in conjunction with State work, if that can be arranged without prejudice to the State work'.46
Webb subsequently accepted a third commission in September 1945, this time to chair a Board of Inquiry to which Justice Alan James Mansfield of the Supreme Court of Queensland and Judge Richard Clarence Kirby of the New South Wales District Court were also appointed. However, the Board of Inquiry is typically referred to – even in its own correspondence – as the Australian War Crimes Commission (CA 3865).
A new secretary, Mr William E Cuppaidge, was also appointed. Counsel was not briefed but Webb sought for and gained the assistance of Lt Col Thomas B Stephens, a reserve officer from the Australian Army Legal Corps. The Board of Inquiry's instructions, given on 3 September 1945, expanded the inquiry's remit even further to embrace both British subjects and citizens of Allied nations. The Board was instructed to inquire into whether:
any war crimes have been committed by any subjects of any State with which His Majesty has been engaged in war since the second day of September, [o]ne thousand nine hundred and thirty-nine, against any persons who were resident in Australia prior to the commencement of any such war whether members of the Defence Force or not, or against any British subject or against any citizen of an allied nation.47
The Board was given a list of 35 war crimes with its instructions (Appendix A). It was essentially the list drawn up by the post–World War I Allied Commission on Responsibility of the Authors of the War and on Enforcement of Penalties in 1919,48 together with a few additional items: crimes against peace, cannibalism and mutilation of the dead.
Image 3: Letter from General Douglas MacArthur responding to Webb's request for permission to travel through certain areas.
NAA: A6238, 2
Webb and Mansfield's relations with Kirby went slightly awry in October 1945, when Kirby sought Commonwealth government approval to be detached to Lord Mountbatten's headquarters in Kandy without first discussing the proposal with his fellow commissioners.49 Webb advised Evatt that Kirby's action in not addressing his 'colleagues alone in the first instance' was regrettable and that, while detachment was a matter for the government to decide, he was 'far from happy about this development'. Webb pointed out that detaching Kirby to be a 'mere Australian war crimes liaison officer on Lord Mountbatten's staff' would greatly increase the evidence-gathering burden on himself and Mansfield.50
Mansfield seemed to concur, writing to Webb that Kirby's action in directly addressing government ministers was 'certainly extraordinary'. Mansfield thought that Webb's response to Kirby was fully justified.51 Kirby quickly apologised and accepted Webb's opinion that he should have communicated in the first instance with his colleagues, although he did not think his action had 'displayed lack of trust or co-operation between the commissioners'. Kirby argued that he had been prompted by the need for an urgent decision and was still in favour of being detached to Lord Mountbatten's staff, although he did not agree that this would reduce him to a 'mere Liaison officer'.52 The detachment did not go ahead.
Workloads for the war crimes commissioners did become more urgent a short time later when Mansfield was sent to London to assist the United Nations War Crimes Commission and Kirby was released to undertake a Royal Commission in Tasmania. Webb suggested in November 1945 that Mr Barry KC be appointed as a commissioner.53
However, only a month later Webb seemed to acknowledge that the main work of the Board of Inquiry – the taking of evidence of atrocities from witnesses – was being overtaken by events. The Army was now taking the lead in investigating and prosecuting war crimes. Moreover, the war crimes commissioners did not have a role in the Australian Military Court war crimes trials, which were already running in several locations.
Webb recommended to the government that no further commissioners be appointed but asked for Barry's help on a part-time basis to assist him with drafting the final report.54 Despite Webb's recommendation, on 5 January 1946 Justice Philp, who had turned down the original war crimes commission in 1943, was appointed as a commissioner.55 Philp subsequently took evidence in Sydney and Melbourne.
By the end of the inquiry, a further 248 witnesses had been examined. The final report was signed by Webb and Mansfield on 31 January 1946. As Webb had belatedly realised, however, the bulk of war crimes investigative and prosecutorial duties had been, by late 1945, effectively taken over by the Australian Army, whose role will be discussed in Chapter 4.
The Webb reports
The three comprehensive reports that Webb (and his fellow commissioners in respect of the third report) produced are, not surprisingly, known as the Webb reports. However, details of the evidence being gathered from witnesses and the review of captured Japanese documents throughout 1943–45 remained closely held.
As Webb himself described in his first report in March 1944, he had been amply instructed from the very beginning of the need for 'the utmost secrecy' and that, when the subject matter of the inquiry was discussed in military correspondence, it was classified as 'most secret'.56 He advised that he had, therefore, heard all evidence in camera, as he was empowered to do,57 and had warned each witness that their evidence was 'most secret'.58 He also recommended against publishing any part of his first report.59
When completed, the Webb reports were provided to the Australian Government under the terms of the various commissions, and summaries were provided to the United Nations War Crimes Commission and selected Allied nations, including the United Kingdom, several other British Commonwealth nations (including Canada and New Zealand) and the United States. Copies of the full reports and the summaries were typically marked 'secret'.60
The Australian Government did, apparently, briefly consider whether to make public all or some of the first Webb report in 1944. Certainly, the regulations under which Webb's inquiries took place appeared to contemplate the eventual publication of the reports, as they offered protection against civil or criminal proceedings (such as defamation) being instigated against any person 'publishing in good faith for the information of the public'.61
Conferral with the United Kingdom and the United States about possible publication of the first Webb report, however, revealed that they 'did not favour any further publicity on Japanese atrocities at present'.62 The Australian Government decided in early July 1944, therefore, not to publish a detailed statement regarding the atrocities disclosed by Webb's first inquiry.63
Atrocity stories were routinely censored during the war pursuant to the censorship imposed by the National Security (General) Regulations 1939 (Cth).64 But, this time, the decision against publishing the first Webb report was seemingly not on the ground of the probable effect it might have on public morale, which was usually the rationale given for censorship of atrocity stories. Rather, the issue of whether to publish or publicise the Webb report became a fundamental part of broader and complex Allied policy discussions regarding the publicity campaign aimed at Japan in general (which encompassed propaganda about Japanese atrocities) and, in particular, the likely effect of further publicity of atrocity stories on efforts that were then ongoing to secure better Japanese treatment of Allied prisoners of war and internees.
Indeed, as Evatt informed the Advisory War Council, in making the decision not to publish the Webb report, the government had given 'regard to the interests of the Australian prisoners of war in Japanese hands'.65 Prime Minister Curtin thus simply announced in July 1944 that the Webb report would 'not be made public at present'.66 Instead, the Australian Government advised that Webb had received a second commission in order to continue his investigations; that the results of Webb's inquiries would eventually be brought before the United Nations War Crimes Commission; and that Australia was 'determined that those individuals responsible for atrocities shall be brought to justice and punished'.67
When the war ended in September 1945 and censorship was about to be lifted, the imminent public release of the first Webb report saw it described in the press as 'perhaps the most horrifying war document yet compiled'.68 Although the full report was classified 'top secret',69 extracts were laid before Parliament on 12 September 1945 and, when they were widely published in the press, caused a storm of public outrage. The third and final report, which was signed on 31 January 1946, was laid before Parliament on 10 April 1946 but to much less press attention.
Due to the onerous task of re-typing, only a handful of complete copies of the transcripts, exhibits and reports of the three Webb inquiries were ever made. For example, only one copy of the first Webb report was in existence in March 1945.70 A year later in March 1946, there were three copies of the first report: one copy was known to be in use by the Army at the Australian war crimes trials but the whereabouts of the other two copies were unknown.71 Similarly, only five copies of the third and final report were made and Parliament did not decide to print it.72
The extremely limited distribution of copies created some difficulty when the original evidence and exhibits that were the basis of the first Webb report were urgently sought for use at the International Military Tribunal for the Far East in Tokyo, which is discussed in Chapter 9.73 Although these sorts of problems would not arise today, researchers are still hampered by the limited number of copies and distribution of the Webb reports.
Webb after the inquiries
Webb's name joined a very select list when candidates were being considered in late 1945 and early 1946 for the position of Australian judge to the International Military Tribunal for the Far East. Webb was nominated in January 1946 as the Australian judge and, in May 1946, was also appointed to the bench of the High Court of Australia. Relations between Webb and Kirby appeared to have been restored by this point, as Kirby wrote from Hobart to congratulate Webb on his appointment and, at the same time, conveyed that it had been 'very pleasing' to him that he had been earlier selected to serve with Webb. In turn, Webb thanked Kirby for his 'nice letter' and recalled their 'pleasant association' together on the commission.74
Overview of the records
This chapter sorts records into several sections:
- the report, transcript and exhibits for each inquiry
- the administrative, correspondence and other files of each of the inquiries
- the files of various government departments relating to the inquiries
- the issue of publicising Japanese atrocities.
Files relating to the inquiries held at the Australian War Memorial are listed separately at the end.
18 For a very brief overview of the war crimes inquiries written at the time, see Report on the Directorate of Prisoners of War and Internees at Army Headquarters, Melbourne, 1939–51, part V, chapter 2, NAA: A7711, VOLUME 1.
20 Letter from Mr AG Bennett, Deputy Crown Solicitor to Crown Solicitor, Canberra, 19 June 1943 and minute paper from the Secretary to the Acting Attorney-General, 23 June 1943, NAA: A472, W18153 PART 1. For a brief biography of Philp, see James B. Thomas, 'Philp, Sir Roslyn Foster (Ross) (1895–1965)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/philp-sir-roslyn-foster-ross-11389.
21 For a brief biography of Webb, see HA Weld, 'Webb, Sir William Flood (1887–1972)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/webb-sir-william-flood-11991/text21499. For Webb's acceptance, see his handwritten note dated 19 June 1943, NAA: A472, W18153 PART 1.
22 For Webb's appointment, see letter from Prime Minister John Curtin to Mr FM Forde, Minister for the Army, 8 April 1943, NAA: MP742/1, 336/1/1145. For the regulations, seeNational Security (Inquiries) Regulations 1941 (Cth), Statutory Rules 1941, no. 35, made on 18 February 1941. The regulations 'as made' in 1941, and subsequent amendments, are available in full on the Federal Register of Legislation: www.legislation.gov.au.
24 Reported in letter from the Acting Director General of Public Relations, Department of the Army, to the Chief Publicity Censor, 10 July 1943, NAA: SP109/3, 329/07. See the request for the Army to ask the Chief Publicity Censor to direct censorship on the 'reason for the Chief Justice's absence' in letter from Brennan to Major Cummins, HQ, Qld L of C Area, 30 June 1943, NAA: J1889, BL43895/4.
25 See PGF Henderson, 'Brennan, Keith Gabriel (1915–1985)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/brennan-keith-gabriel-12252/text21983.
26 Stanley briefly reminisces about his time working on the first Webb inquiry in his unpublished memoirs: EJD Stanley, 'A Mingled Yarn: Being Recollections and Reflections', held in both the Supreme Court of Queensland Library and in the Fryer Library, University of Queensland, UQFL252.
28 Lists of the places of hearing, names of witnesses and exhibits appear in ibid, third, fourth and fifth schedules.
31 For a summary of overseas press reporting, see 'Storm of Protest in Britain, USA. Feelings of Horror about Japanese Atrocities', Argus (Melbourne), 31 January 1944, p. 12; 'Anger at Atrocities. Sharp World Reaction', Advertiser (Adelaide), 31 January 1944, p. 1.
32 'Commission to Probe Jap War Crimes', Canberra Times, 1 February 1944, p. 2. See also 'Inquiry into Jap War Crimes. Body Set Up By Federal Govt.', News (Adelaide), 31 January 1944, p. 3; 'Japanese Atrocities in Pacific. Australian Commission of Inquiry Appointed', Mercury (Hobart), 1 February 1944, p. 2.
33 See the copy of the instructions in Sir William Webb, 'A Report on Japanese Atrocities and Breaches of the Rules of Warfare', March 1944, first schedule, NAA: A10943, 1.
34 See a copy of the instructions in 'A Report on War Crimes by Individual Members of the Armed Forces of the Enemy against Australians by Sir William Webb', October 1944, first schedule, NAA: A10950, 1. The second Webb inquiry was known more formally as the Australian War Crimes Commission [I], 1944–45 (CA 284).
35 See, for example, 'Webb to Sift War Crimes', Courier-Mail (Brisbane), 18 August 1944, p. 1.
36 In addition to the war crimes inquiries, Webb had also undertaken in the second half of 1944 an inquiry into censorship: see NAA: A472, W22283 PART 3. On Webb's extra-judicial inquiries, see Peter Provis, 'I hope to be of some real assistance to your government': The Extra-Judicial Activities of Sir William Flood Webb, 1942–1948', unpublished PhD thesis, Flinders University, 2015.
48 Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, 'Report Presented to the Preliminary Peace Conference 29 March 1919', American Journal of International Law, 1920, p. 114.
54 Letter from Sir William Webb to Major General CEM Lloyd, Adjutant-General, 10 December 1945; and letter from Sir William Webb to Mr N Makin, Acting Minister for External Affairs, 10 December 1945, NAA: A1066, H45/580/2/7.
56 See Webb's discussion of this under the heading 'The Need for Secrecy', in 'Report on Japanese Atrocities and Breaches of the Rules of Warfare', pp. 4–5.
57 The whole or part of an inquiry's proceedings might be 'heard in private' if the commissioner 'considers that it is desirable in the public interest to do so': see National Security (Inquiries) Regulations, r 15.
60 See, for example, the draft 'Summary of Report on Japanese Atrocities and Breaches of the Rules of Warfare presented to His Majesty's Government in the Commonwealth of Australia on March 15, 1944, by Sir William Webb Kt', which is marked as the secret copy for Evatt, NAA: A1066, H45/580/2/8/1. The summary despatched to the Australian Legation in Washington DC is in NAA: A3300, 316A.
61 National Security (Inquiries) Regulations, r 16.
64 National Security (General) Regulations 1939 (Cth), Statutory Rules 1939, no. 87, made on 13 September 1939. The regulations 'as made' in 1939, and subsequent amendments, are available in full on the Federal Register of Legislation: www.legislation.gov.au.
65 Memorandum for Advisory War Council, 'Investigation of War Crimes Against Australians', 3 July 1944, NAA: A989, 1944/43.
66 'Atrocities Report Not to be Published Yet', The Advertiser (Adelaide), 6 July 1944, p. 5.
69 Reported in memorandum from the Secretary of the Department of External Affairs to Webb, 14 March 1947, NAA: A1067, UN46/WC/11. The report was finally declassified in April 1947, with Webb's concurrence, given that a number of requests to review it had been received from Commonwealth Government departments, individuals and law firms (reportedly for probate purposes): see further correspondence in NAA: A1067, UN46/WC/11.
71 Cablegram from the Department of External Affairs to the Australian Government Representative, Tokyo, 4 March 1946, NAA: A1067, UN46/WC/11. Indeed, extracts from that report were tendered at several trials in Rabaul, including the trial of General Imamura Hitoshi, NAA: A471, 81635, PARTS A–F PART A, PART B, PART C, PART D, PART E, PART F
73 See, for example, the cablegram from Tokyo asking for the original evidence and exhibits which formed the basis of the first Webb report to be sent to Tokyo on an 'urgent' basis: cablegram from the Australian Government Representative, Tokyo to External Affairs, 2 March 1946, NAA: A1067, UN46/WC/11.