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Japanese War Crimes in the Pacific: Australia's investigations and prosecutions


3 The United Nations War Crimes Commission and Australia

Image 7: Functional chart of the United Nations War Crimes Commission, 15 March 1945

Image 7: Functional chart of the United Nations War Crimes Commission, 15 March 1945
NAA: A2937, 273
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Introduction

The creation of an international body to investigate evidence of atrocities in World War II was first publicly announced in the United Kingdom and the United States of America in October 1942. The United Nations77 Commission for the Investigation of War Crimes or the United Nations War Crimes Commission (UNWCC), as it soon became known, was finally constituted in London on 20 October 1943 and existed until 31 March 1948. The commission was initially located in the Royal Courts of Justice in the Strand, then in Westminster and finally in Berkeley Square, London.

It functioned as an autonomous international organisation78 financed by contributions from member governments, including the United Kingdom, which provided the premises and outfitting. In addition to a financial contribution, each member nation supported the work of the commission by means of its designated National Office which, for Australia, was the Department of External Affairs. The commission was remarkable for a number of reasons, not least the involvement of a significant number of nations, including some representatives of governments in exile but noticeably not the Soviet Union. Moreover, it was claimed in 1948 that the United Nations War Crimes Commission was the 'least expensive International Commission known in history'.79  

Organisationally, the commission was headed by a chairman, consisted of representatives from each member nation and was supported by a small secretariat headed by a secretary-general.80 Although the representatives did meet as a commission, three principal committees were set up to deal with different matters:

  • a Committee on Facts and Evidence (often referred to as Committee I)
  • an Enforcement Committee (Committee II)
  • a Legal Committee (Committee III).

Other miscellaneous committees were established over time, including an Executive Committee, a Finance Committee, a Public Relations Committee and a Legal Publications Committee. A Research Office also produced a multitude of reports, summaries, bulletins and circulars from May 1944.

The United Nations War Crimes Commission established a Far Eastern Committee in London but also established the Far Eastern and Pacific Sub-Commission (FEPSC) in Chungking, China, in which Australia participated. The sub-commission functioned like the United Nations War Crimes Commission, with its own secretariat, Committee on Facts and Evidence, and Finance Committee. While some thought was given to whether to establish a separate Australian sub-commission to the United Nations War Crimes Commission – perhaps with Sir William Webb's war crimes commission at its core – one never eventuated.81

The primary tasks of the United Nations War Crimes Commission were initially identified as:

  • the investigation of evidence of war crimes
  • compilation of lists of persons wanted for trial as war criminals
  • the reporting back to the national governments as to whether the evidence was sufficient to warrant further action.

The commission did not draw up its own list of what actions or omissions were war crimes but used as a 'working list' the non-exhaustive list of war crimes drawn up by the post–World War I Allied Commission on Responsibility of the Authors of the War and on Enforcement of Penalties in 1919,82. which was discussed in Chapter 2. Indiscriminate mass arrest, crimes against peace and crimes against humanity were also considered to be war crimes within the remit of the commission. As the United Nations War Crimes Commission did not have its own investigatory arm for fieldwork,83 the bulk of war crimes information and cases was supposed to be provided by the national offices of member nations. This system of voluntary engagement did not, however, work very well or efficiently.84 In August 1944, for example, the United Nations War Crimes Commission Secretary-General pointed out that only the United Kingdom, Belgium, Czechoslovakia, France, the Netherlands, Poland and Norway had thus far transmitted cases to the commission and that the total number of cases transmitted was 'unexpectedly small'.85

There were concerns in late 1944 to early 1945 that the apparent lack of significant progress on the primary tasks, if revealed to the public, would produce strong criticism. These concerns were compounded by the fact that the commission generally maintained a policy of quiet diplomacy, rather than active publicity, about its activities. In part, this was to maintain the illusion of Allied solidarity (even while the existence and purpose of the commission itself was contested) but also for fear that publicity would invite reprisals against Allied nationals, millions of whom were held prisoner by the Axis powers at that point.

Although both were very reasonable considerations, the commission's lack of strong public engagement produced a vacuum of information that enabled press criticism. As one report urged in early 1945:

We cannot maintain the policy of 'secret diplomacy' practised up to date. The results are disastrous. If we had for instance published the fact that the Commission has already put Hitler and the members of his gang called Government, on [War Crimes Suspects] List No. 1 of November 22nd 1944, the whole Press Campaign of January 1945, also some stupid remarks about our attitude towards the arch-criminals would have been impossible.86

The Public Relations Committee was established in early 1945 to better provide information to and deal with governments, military and other agencies, the press and the public at large.

By the end in 1948, the United Nations War Crimes Commission – through the Committee on Facts and Evidence (Committee I) – had examined 8178 charges involving over 36,000 suspects.87 The committee considered the war crimes cases submitted to it, usually in the presence of representatives of the submitting nation. The committee then placed the names of those against whom a prima facie case had been made on its official lists of war crimes suspects, which were then communicated to facilitate the apprehension of the suspects.88 In that sense, the United Nations War Crimes Commission functioned as a 'committing magistrate', the exact explanation used at the time to describe its role.89 Responsibility for apprehending and trying those listed as war crimes suspects on the commission's lists was, thereafter, largely the role of national governments or the international tribunals.

The commission's primary tasks were expanded to also include:

  • the examination of questions of law, method and policy regarding war crimes and international criminal law
  • the making of formal recommendations to national governments.

In relation to the Pacific theatre, for instance, the commission declared its views on bringing Japanese war criminals to justice in 'Summary Recommendations Concerning Japanese War Crimes and Atrocities', which was adopted by the commission on 29 August 1945,90 and endorsed by Australia in September 1945.91 A number of very significant legal issues were debated in detail in the commission, including:

  • whether certain acts were war crimes92
  • the status of certain defences (such as military necessity and obedience to superior orders)
  • the drafting of various international conventions
  • whether a United Nations or International War Crimes Court should be established.93

The records of the Legal Committee (Committee III) and various reports produced by the commission legal officers thus provide an important resource on the development of international criminal law in this period.

Although an official history of the United Nations War Crimes Commission was published in 1948, there was little research on the commission in the next several decades. One probable reason is that, after the dissolution of the commission, its records – some 464 boxes – were transferred to the United Nations in May 1949. During this transfer process, a 'substantial portion' of files of alleged 'no historical value' were destroyed,94 including, for example, the proceedings of seven sub-committees, such as the Executive Committee. Unfortunately, Australia's collection of United Nations War Crimes Commission records does not hold copies of these destroyed original records.

Once in United Nations' custody, the commission records were difficult and time consuming to access. The rules for accessing the archives were established by the United Nations in consultation with Lord Wright of Durley, the Australian representative and commission chairman, and Dr J Litawski, a legal officer of the commission. While general administrative and organisational records were opened, it was decided that 'accusatory' records should be restricted, except from the governments who had been members. In the decades since, with the commission no longer in existence, every country that had been involved in the commission had to debate possible changes to the rules for access.95

Since the late 1980s, physical access to the United Nations War Crimes Commission archives at the United Nations has become somewhat easier, although researchers must still apply through their nation's Permanent Representative or Observer at the United Nations and indicate the precise nature of their research and the records sought for access.96 In recent years, however, digitised copies of the commission records have become available at:

  • the United Nations Archives97
  • the International Criminal Court's (ICC) Legal Tools database98
  • the United States Holocaust Memorial Museum (USHMM) Archives in Washington DC99
  • the Wiener Library for the study of the holocaust and genocide in London.100

While the United Nations Archives and the International Criminal Court's Legal Tools database have posted some digitised records online, the complete digitised copies at the Holocaust Memorial Museum and the Wiener Library can only be accessed at special terminals within the reading rooms of those two institutions: making advance contact with the institutions before visiting is recommended. These records comprise 187 microfilm reels which have been digitised into 456,156 jpg images.

The United Nations War Crimes Commission's archives have been rightly described as a 'little known treasure trove regarding the development of international criminal justice'.101 Fortunately, some of that trove is now easier to access and new scholarship is emerging.

Image 8: Farewell letter from United Nations War Crimes Commission legal officer Dr Egon Schwelb to Australian deputy representative Mr Geoffrey Bridgland

Image 8: Farewell letter from United Nations War Crimes Commission legal officer Dr Egon Schwelb to Australian deputy representative Mr Geoffrey Bridgland
NAA: A2937, 306
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Australian membership of and representation on the United Nations War Crimes Commission

Australia was a member of the commission from the outset in October 1943.102 For the first fiscal year of membership, Australia paid a base contribution of £400 in support, plus an additional sum to cover budgetary shortfall, which was apportioned between member nations on a sliding scale of allocation.103 Australia's contributions fluctuated from year to year thereafter. Interestingly, when the commission was dissolved in 1948 and its accounts were settled, Australia received a refund of £126 10s 1d.104

The first Australian representative was the Australian-born jurist, James Richard Atkin, the Rt Hon. Lord Atkin,105 of whom the United States representative to the United Nations War Crimes Commission colourfully wrote:

his value as a public man is questionably very great. … his ideas are intelligent and practical [and] … because the English particularly respect the legal opinion of a  Lord of Appeal and will not dare to brush it aside as the mere vapourings of a visionary who knows nothing of the black art of law. … When Lord Atkin talks about it they have to listen.106

After Atkin's death in 1944, the Australian representative was the equally distinguished British jurist Robert Alderson, Lord Wright of Durley. Lord Wright represented Australia from July 1944 and also chaired the commission from January 1945 to 1948, its most intensive period. Although initially reluctant to take on the role of Australia's representative due to the perceived workload, Lord Wright threw himself wholeheartedly into the job and appeared to be very well regarded, both privately and publicly, by other representatives. Mr John Oldham, who functioned as Australia's deputy representative, wrote to a friend that Lord Wright was 'a very able and energetic man, and despite his great age, his eagle eye has not lost any of its piercing qualities' and that he was 'certainly an inspiring man to work for'.107 Similarly, the Yugoslav representative to the commission publicly commended his 'vigorous leadership'. Lord Wright, he said, 'besides being a great lawyer, is well known as a man of action'.108

Other Australians who played significant roles in the United Nations War Crimes Commission included the former Prime Minister, Stanley Melbourne Bruce, then High Commissioner in London, who attended the first meeting on 20 October 1943 and took an interest thereafter. As the Department of External Affairs functioned as Australia's National Office,109 a number of departmental officers located in London also directly participated in the United Nations War Crimes Commission. In November 1945, for instance, deputy representative Geoffrey Bridgland was a member of the influential Committee on Facts and Evidence and the Legal Committee (Committees I and II) and also sat on the Far Eastern Committee and the Finance Committee.110 

Australia's inaugural representative to the Far Eastern and Pacific Sub-Commission in Chungking was Mr Keith Officer, the chargé d'affaires in the Australian Legation, Chungking. While Australia's representative was usually a legation officer, Mr Douglas Berry Copland, the Australian Minister to China, served in the role for a brief period in 1946.

Table 1: Australian representatives at the United Nations War Crimes Commission and the Far Eastern and Pacific Sub-Commission

Role

Name

Period

Representatives to the United Nations War Crimes Commission

Lord Atkin

Oct 1943–Jun 1944

Lord Wright of Durley

Jun 1944 onwards

Deputy Representatives to the United Nations War Crimes Commission

Mr John Egerton Oldham

1944–Oct 1945

F/O Geoffrey Stokes Bridgland

1945–47

Justice Alan Mansfield

Dec 1945–Jan 1946

Mr Peter Richard Heydon111

1947

Australians appearing before the United Nations War Crimes Commission

Sir William Webb

late 1944 to early 1945

Professor Kenneth Hamilton Bailey112

late 1945

Representatives to the
Far Eastern and Pacific Sub-Commission

Mr Keith Officer113

1944–45

Mr Henry Stokes

1945

Mr Patrick Shaw114 

1945–47

Mr Douglas Berry Copland115

1946

Mr Charles Lee

1946

Australian investigations presented at the United Nations War Crimes Commission

Sir William Webb's national commissions from 1943 to investigate atrocities and war crimes, as discussed in the previous chapter, overlapped with the investigatory and evidence compilation tasks of the United Nations War Crimes Commission. In the first year or so, however, there was not much attempt at a coordinated approach or a free flow of information. Although Webb presented his first war crimes report to the Australian Government in March 1944, it was not until August 1944 that a 'Summary of the Report on Japanese Atrocities and Breaches of the Rules of Warfare' was forwarded to London for presentation to the United Nations War Crimes Commission.116

However, as the title suggests, this document was only a brief summary. To make matters worse, as certain details in it were regarded as 'most secret' for military reasons, names of persons and units had been omitted.117 Although the then commission chairman, Sir Cecil Hurst, thanked Australia for forwarding the summary and said he would 'study the report with interest', its brevity does lead one to question how much use it might have been to the commission.118

Closer interaction began at the turn of 1945, when Webb travelled to London to appear before the United Nations War Crimes Commission. Webb was present at the meeting of the commission on 31 January 1945 when Lord Wright was elected as chairman.119 Webb's main purpose in attending was to put before the commission Australia's first war crimes cases which, at that stage, were largely supported by evidence drawn from his investigations.120 After examination by the Committee on Facts and Evidence (Committee I), the Australian cases were classified into:

  • List A cases: war criminal suspects (by name or holding a particular position in a unit) who were to be apprehended for trial121
  • List A–Units cases: units which had systematically breached the laws of war, whose members were to be apprehended en masse for trial
  • List C cases: where evidence was insufficient to identify a particular person and required further investigation.122

Afterwards, the chairman of the committee complimented Australia on its preparation of cases, which had been the 'best prepared of those which the Committee had received'.123 In due course, the United Nations War Crimes Commission issued its first Japan-related suspects list based exclusively on Australian information: the 'Fourth List of War Criminals Together with List of Suspects and List of Witnesses (Japanese)' in March 1945. As explained in its preface, the list of war criminals named:

men believed to have been responsible for the commission of a war crime as to whom the Commission is satisfied there is, or will be at the time of trial, sufficient evidence to justify a prosecution.124

Other Australians also appeared before the Committee on Facts and Evidence to present Australia's cases. Justice Alan Mansfield, for instance, who had worked as a war crimes commissioner with Webb, was in London from December 1945 to January 1946, serving briefly as Australia's deputy representative. Professor Kenneth Bailey, then Solicitor-General, also appeared before the committee in February 1946, when Australia was steadfastly pursuing the addition to the United Nations War Crimes Commission lists of 'major Japanese war criminals' whose 'guilt' was 'evident' in the same manner in which Hitler and other 'arch criminals' had been added, without the necessity for comprehensive documentation of their offences.125

Two Australian lists of 'major Japanese war criminals and those holding key positions' were drawn up by 'Australian experts in Japanese affairs'. The first list, which was also approved by Webb, included many of those Japanese who were tried at the International Military Tribunal for the Far East and a considerable number (including the Emperor at no. 7 on list no. 1) who were not.126

After the Australian war crimes trial program commenced in late November 1945, Australia submitted to the United Nations War Crimes Commission various nominal rolls of those Japanese who were still being sought by Australia for trial: suspects who were being held in custody and those who had been tried under the War Crimes Act 1945 and the trial outcomes. These lists are discussed in Chapter 4. Researchers are warned, however, to approach United Nations War Crimes Commission's statistical information regarding Australia's war crimes investigations and prosecutions in both theatres of war with some caution:

  • Firstly, as it was not a requirement that member nations be the specific reporter of war crimes cases involving their nationals, the United Kingdom in fact placed all cases involving Australian victims of German war criminals before the commission for consideration.
  • Secondly, all commission records and publications were created well before the end of the Australian trial program in 1951 and are, therefore, incomplete or inaccurate.
Image 9: One of the many commission requests to Australia for its history of war crimes prosecutions, 14 January 1948

Image 9: One of the many commission requests to Australia for its history of war crimes prosecutions, 14 January 1948
NAA: A9992, 1940/1
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United Nations War Crimes Commission Law Reports Series and Official History

The commission decided relatively early to prepare reports of some of the war crimes that had been committed in the theatres of war. One reason was to make clear:

at the appropriate moment … the connexion between the individual crimes of each type and the common policy which they expressed, thereby making it easier for the general public to comprehend the justification for and the necessity of the severity which had been shown towards their perpetrators.127

The commission thus took steps from August 1945 to collect records of national war crimes trials. Lord Wright, by then chairing the commission, requested member nations on 30 August 1945 to 'send regularly to the Commission the report or records of trials of war criminals', as he was anxious that the task of recording the trials begin as soon as possible.128

As with the earlier provision of information by member nations, however, progress was neither as swift nor as complete as had been hoped. By May 1946, for instance, when the commission was starting to contemplate actual publication of law reports, it had only received a single trial report from Australia's trials.129 Lord Wright thus observed in July 1946 that while he could not say the commission had received no war crimes trial reports at all from the Far East, he had been:

very disappointed that no reports have reached us, except in a rather casual and scrappy way, and often the only news we had here [in London] of what was going on has come from the popular press.130

Australia eventually provided the commission with copies of the Australian legislation and regulations for its trials, regular statistical 'Progress Reports' on the trials, brief reports of most of the trials (by forwarding a copy of the Record of Military Court document from the trial proceedings) and some full copies of trial proceedings.  

The United Nations War Crimes Commission's Legal Publications Committee was established in October 1946 to deal with publication of its law reports series. Fifteen volumes of the Law Reports of Trials of War Criminals were published between 1946 and 1949 (the last by a skeleton staff after the closure of the commission in March 1948). All 15 volumes are available online.131

The volumes contained reports of selected national trials regarding war crimes committed in both the European and Pacific theatres of the war, chosen from the (sometimes still limited) trial records provided by member nations to the commission to best illustrate the application and development of the law of war. The overwhelming majority of the published law reports came from trials convened by the United States, Britain and France, which accounted for 66 reports. Although about 90 of Australia's war crimes trials were considered for inclusion, only five of the 300 trials were reported in volumes V and XI, as shown in the table below.

Table 2: Australian trials reported in the United Nations War Crimes Commission Law Reports Series

Trial Number

Held

Accused

Published in UNWCC
Law Reports

R26

Rabaul, March 1946

Sgt Maj Ōhashi Shigeru and others

Volume V, pp. 25–31

R31

Rabaul, April 1946

Capt Shinohara Eitarō and others

Volume V, pp. 32–36

R59

Rabaul,
May 1946

Capt Katō Eikichi

Volume V, pp. 37–38

R176

Rabaul,
June 1947

Lt Gen Baba Masao

Volume XI, pp. 56–61

R161

Rabaul,
July 1946

Sgt Maj Tanaka Chūichi

Volume XI, pp. 62–63

Australian cases had slightly better coverage than those of some other member nations: Canada and China had only one law report each from their war crimes trials included in the volumes. The scant representation was probably disappointing to one observer, who had suggested to Bridgland in 1947 that:

it would be a scandal if there were not a least a number of cases conducted under Australian auspices to indicate to posterity a properly balanced view of war crimes in this war. There is, as you will realise, a risk of the volumes [of the Law Reports] being overloaded on the European side.132

Volume V also contained a brief annex on 'Australian law concerning trials of war criminals by military courts'.133 The final volume, XV, contains useful summaries on the sources of international criminal law, legal basis of courts and court procedures, parties to crimes, victims, offences, defence pleas and punishment.

The virtual tradition by now of slow national compliance with United Nations War Crimes Commission's requests for information continued in relation to efforts to produce and publish the official history of the commission.

The delays in providing Australia's contribution led one observer to point out in March 1948 that, if Australia did not provide its account fairly swiftly, the volume would 'appear with some short expression of regret that there is no reference to Australian work in the matter'.134

Understanding United Nations War Crimes Commission records

Australia's national records necessarily include a great volume of copies of United Nations War Crimes Commission records, including minutes of the commission and various committees, official documents, periodical lists, reports and other publications. To aid in establishing context, the minutes of the commission meetings are numbered using the designation 'M' from M.1 to M.135. The minutes of the three principal commission committees, and various smaller committees, were also consecutively numbered. For example, the minutes of the Legal Publication Committee are numbered LPC/1 onwards. Commission official documents were designated:

  • 'C' documents, numbered C.1 to C.267
  • 'A' documents, numbered A.1 to A.67
  • 'Misc' documents, numbered Misc.1 to Misc.126.

Official documents of the three principal United Nations War Crimes Commission committees bear various designations using roman numerals:

  • Committee I (Facts and Evidence) documents are numbered I/1 to I/102
  • Committee II (Enforcement) documents, including minutes, are numbered II/1 to II/51
  • Committee III (Legal Committee) documents are numbered III/1 to III/118.

The Far Eastern and Pacific Sub-Commission numbered its minutes using the designation 'SM' from SM.1 to SM.38. Minutes of its Committee on Facts and Evidence and Finance Committee and other sub-commission documents were all numbered together using the designation 'D'.

The United Nations War Crimes Commission and the Far Eastern and Pacific
Sub-Commission produced a number of documents series for internal and external circulation, which were usually numbered and dated. These include the various commission and
sub-commission periodical lists, such as Lists of War Criminals and Material Witnesses, and Lists of War Criminals Holding Key Positions.135 The Legal Committee and the Research Office were also particularly productive in relation to documents series. The Legal Committee produced:

  • the 'Law Reports Series', which was numbered and dated. From issue no. 7, this series became known as the 'Trial and Law Reports Series'. This series briefly summarised and analysed selected national trials from the European and Pacific theatres, which often went on to be reported in more detail in the  United Nations War Crimes Commission's published Law Reports of Trials of War Criminals. 
  • the 'Synopsis of Trial Reports' and supplements, which were numbered and dated. This series listed reports of national war crimes trials from the European and Pacific theatres received by the United Nations War Crimes Commission.
  • the 'Survey of Legal Literature', which was numbered and dated. This series briefly analysed recent topical legal literature and was distributed as a supplement to the Research Office's 'Press News Summary' or 'War Crimes News Digest Series', listed below.

The Research Office produced:

  • the 'Summary of Information' numbered 1–55 and usually dated. Issue
    nos. 1–11 were known as 'Reports' but the name was changed to 'Summary of Information' from issue no. 12 to make clear that this series was not reports of the United Nations War Crimes Commission itself.
  • the 'Bulletins' or, later, 'Weekly Bulletins' numbered  1–124 and dated. This series briefly listed and described external documents received by the Research Office for the purpose of informing national offices. All external documents received were given an 'R' registration number, with documents pertaining to Japan usually registered as R*/J/*.136
  • the 'Documents Series', which reproduced important external documents verbatim or in translation, and were numbered 1–53 and dated.
  • the 'Press News Summary', which was numbered and dated. From issue no. VII, the series was renamed the 'War Crimes News Digest'. The series compiled official news, news from press sources, and the 'Survey of Legal Literature' supplement for internal circulation. Periodic subject indexes to runs of either five or ten issues were also produced.137 
  • the 'Research Circulars', which reported on ongoing proceedings, issues and outcomes of both international and national trials, and were numbered and sometimes dated.

The Australian collection contains partial subject indexes to minutes and documents of the commission138 and partial chronological lists of 'C' and 'Misc' documents.139 No similar index or list of 'A' documents has been found. However, researchers are advised that the commission records held at the United Nations, and the copies held at the United States Holocaust Memorial Museum Archives and at the Wiener Library contain several invaluable indexes prepared by the United Nations Archives in 1949, including:

  • a master subject index to minutes and documents of the  United Nations War Crimes Commission, Committees I, II and III and Far Eastern and Pacific Sub-Commission (among others)140
  • a subject index to the documents of the Research Office.141

Fortunately, both of these indexes have been made available online by the United Nations Archive.142

Overview of the records

Given the United Nations War Crimes Commission's international nature and that the Department of External Affairs served as Australia's National Office, the majority of files relating to the commission are in series belonging to the Department of External Affairs. This chapter sorts records into several sections:

  • minutes of United Nations War Crimes Commission meetings
  • United Nations War Crimes Commission documents
  • United Nations War Crimes Commission committees and documents
  • documents relating to the Far Eastern and Pacific Sub-Commission in Chungking
  • documents relating to the United Nations War Crimes Commission National Offices Conference in 1945
  • Australia's general policy and correspondence regarding the United Nations War Crimes Commission
  • Australian charges submitted to the United Nations War Crimes Commission
  • the Far Eastern and Pacific Sub-Commission lists of war criminals
  • the United Nations War Crimes Commission Law Reports of Trials of War Criminals and Official History.

Files relating to the United Nations War Crimes Commission held at the Australian War Memorial are listed separately at the end.

Notes

77 'United Nations' was the formal name for the Allied powers fighting against the Axis powers following the 'Declaration by United Nations' of 1 January 1942 and is not to be confused with the postwar United Nations: Yearbook of the United Nations, United Nations Publications, 1947, Part One: 1. Origin And Evolution, p. 1.

78 On the legal status of the UNWCC, see Dr E Schwelb, 'The Legal Status of the United Nations War Crimes Commission', Misc.7, 7 January 1946, NAA: A2937, 272.

79History of the United Nations War Crimes Commission and the Developments of the Laws of War, London: His Majesty's Stationery Office, 1948, p. 134.

80 A list of significant personnel involved with the UNWCC can be found in History of the United Nations War Crimes Commission and the Developments of the Laws of War, Appendix 1. Detailed lists of secretariat staff were also routinely prepared: see lists dated August and October 1947 in NAA: A2937, 306. For an explanation of the various duties of the secretariat and some suggested reforms, see Dr J Litawski, 'Memorandum on the Duties of the UNWCC Secretariat', 16 July 1945, NAA: A2937, 271.

81 See the file 'Atrocities: Australian Panel of War Crimes Commission', NAA: A1066, H45/580/7.

82 See Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, 'Report Presented to the Preliminary Peace Conference March 29, 1919', American Journal of International Law, vol. 14, 1920,
pp. 114–15.

83 UNWCC representatives and staff did venture forth into Europe to inspect, for example, liberated German concentration camps: see Visit of Delegation to Buchenwald Concentration Camp in Germany, Report adopted by the Commission on 3 May 1945, C.101, 5 May 1945, NAA: A2937, 286. UNWCC representatives were also observers at national and international war crimes trials in Europe and in the Pacific. UNWCC Chairman and Australian representative Lord Wright attended to observe both the International Military Tribunal (at Nuremberg) and the International Military Tribunal for the Far East in 1946: see, for example, cablegram from the External Affairs Officer, London to the Department of External Affairs, 7 March 1946, NAA: MP742/1, 336/1/408. For the arrangements for Lord Wright's visit to Japan, see NAA: A1067, UN46/WC/15.

84 See Narrelle Morris and Aden Knaap, 'When Institutional Design is Flawed: Problems of Cooperation at the United Nations War Crimes Commission, 1943-48', European Journal of International Law, vol. 28, no. 2, July 2017, pp. 513–34.

85 Memorandum by the Secretary-General on the Work of the United Nations War Crimes Commission, 9 August 1944, NAA: A2937, 275.

86 Dr B Ećer, Memorandum on the Present Position of the United Nations War Crimes Commission, the Work Already Done, and Its Future Tasks, C.76, 8 February 1945, p. 9, NAA: A2937, 285.

87History of the United Nations War Crimes Commission and the Developments of the Laws of War, p. 150. For periodic statistics, see the First to Third and Final Statistical Progress Reports of Committee I produced as documents C.207, C.241, C.261 and C.267 in NAA: A2937, 288 and A4311, 746/5.

88 The procedure was, of course, slightly more complex than this. For a description of the exact process through Committee I, see 'Processing of Charge Files and Preparation of Commission's Lists of War Criminals under General Supervision of the Legal Officer, Secretary of Committee I', I/47, 1 January 1946, NAA: A2937, 279.

89 See, for example, United Kingdom, Parliamentary Debates, House of Lords, vol. 135, no. 36, 20 March 1945,
p. 676 (Lord Wright), copy held in NAA: A2937, 273; UNWCC Committee I, Statistical Progress Report, 1 February 1944 to end May 1946, C.207, 27 June 1946, p. 2, NAA: A2937, 288; UNWCC Second Progress Report, C.84, 29 March 1945, p. 1, NAA: A1066, H45/580/1 PART 1; and 'Preparation and Presentation of Cases of War Crimes', C.87(1), 19 April 1945, p. 1, NAA: A1066, H45/580/1 PART 1.

90 'Summary Recommendations Concerning Japanese War Crimes and Atrocities', C.145, 29 August 1945, NAA: A2937, 297.

91 See the recommendation to this effect in memorandum to the Minister, 'War Crimes', September 1945, NAA: A2937, 276.

92 See, for example, the file entitled War Crimes Question of definition – "preparation and launching of present
war ...", NAA: A2937, 324.

93 See, for example, Draft Convention for the Establishment of a United Nations War Crimes Court, C.50(1), 30 September 1944; and Explanatory Memorandum to Accompany the Draft Convention for the Establishment of a United Nations War Crimes Court, C.58, 6 October 1944, NAA: A2937, 284.

94 George J Lankevich (ed), United Nations War Crimes Commission, Archives of the Holocaust: An International Collection of Selected Documents, vol. 16, New York and London: Garland Publishing Inc, 1990, p. xviii. This volume reprints a number of key documents from the UNWCC records but, given the concentration on the Holocaust, deliberately omits records dealing with Japan.

95 For correspondence on Israel's request to gain access to the archives in the late 1980s, see NAA: A1838, 1550/9/1 PART 1, PART 2, PART 3

96 For the application package, see http://archives.un.org/sites/archives.un.org/files/files/Finding%20Aids/Predecessors/UNWCC%20application%20package.zip. For the finding aid to UNWCC records held at the UN Archives, see: https://archives.un.org/sites/archives.un.org/files/files/Finding%20Aids/Predecessors/ag-042%20UNWCC.pdf.

97 Researchers are cautioned that not all records have been posted online by the United Nations Archive: https://search.archives.un.org/united-nations-war-crimes-commission-unwcc-1943-1948.

98
http://www.legal-tools.org/en/go-to-database/.

99 https://collections.ushmm.org/search/catalog/irn79237. For the finding aid to UNWCC records held at the United States Holocaust Memorial Museum Archives, see: https://collections.ushmm.org/findingaids/RG-67.041M_01_fnd_en.pdf.

100 https://wiener.soutron.net/Portal/Default/en-GB/RecordView/Index/92681. The Wiener Library has not created its own finding aid but refers researchers to the United Nations and the United States Holocaust Memorial Museum finding aids.

101 Richard Goldstone, 'United Nations War Crimes Commission Symposium', Criminal Law Forum, vol. 25,
nos. 1–2, p. 9.

102 For a very brief overview of Australia and the UNWCC written at the time, see 'Report on the Directorate of Prisoners of War and Internees at Army Headquarters, Melbourne, 1939–1951', part V, chapter 1, NAA: A7711, VOLUME 1.

103 Memorandum to the Secretary, Department of the Treasury, 15 March 1945, NAA: A1066, H45/580/1/1. Australia's proportion of responsibility for extra payments (1.9%) was minuscule compared to that of the United Kingdom (36%) and the United States (36%), although above that of New Zealand (0.39%): UNWCC, Report of the Finance Committee on the Budget for the First Fiscal Period – 26 October 1944 to 31 March 1945, 22 February 1945, Annex B, NAA: A1066, H45/580/1/1.

104 Memorandum from the Acting Secretary General, UNWCC to the Commonwealth of Australia, NAA: A2908, C64/1.

105 On Lord Atkin, see Geoffrey Lewis, Lord Atkin, London: Butterworths, 1983. Lord Atkin is well known to lawyers as the author of the leading judgment in the UK case of Donoghue v Stevenson [1932] AC 562 – concerning the alleged adverse effects suffered by Mrs Donoghue of a snail said to have been consumed in a bottle of ginger beer manufactured by Mr Stevenson – that established the modern law of negligence.

106 Letter from Mr Herbert Pell, Offices of the United States Representative on the UNWCC to Mr John Oldham, Offices of the War Cabinet, 23 June 1944, NAA: A2937, 275.

107 Letters from Mr John Oldham to Mr Keith Officer, Australian Legation, Chungking, 10 April and 15 June 1945, NAA: A4144, 730/1945.

108 Record of conference held on 6 May 1945, between members of the United Nations War Crimes Commission and members of the United States Senate and House of Representatives, speech by Mr Radomir Zivkovic, C.115, 24 May 1945, p. 11, NAA: A2937, 286.

109 For a description of the organisation and operation of the Australian National Office, see the information supplied to the UNWCC for the purposes of the National Offices Conference located in National Offices Conference, 31 May–2 June 1945, Minutes and Documents, Annex II, NAA: A4311, 776/17.

110 UNWCC Composition of Committees, 14 November 1945, C.155, NAA: A2937, 287.

111 For a brief biography of Heydon, see J. R. Nethercote, 'Heydon, Sir Peter Richard (1913–1971)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/heydon-sir-peter-richard-10496/text18621.

112 For a brief biography of Bailey, see Jack E. Richardson, 'Bailey, Sir Kenneth Hamilton (1898–1972)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/bailey-sir-kenneth-hamilton-9404/text16529.

113 For a brief biography of Officer, see Kathleen Dermody, 'Officer, Sir Frank Keith (1889–1969)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/officer-sir-frank-keith-11289/text20145.

114 For a brief biography of Shaw, see David Lee, 'Shaw, Sir Patrick (1913–1975)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/shaw-sir-patrick-11667/text20845.

115 For a brief biography of Copland, see Marjorie Harper, 'Copland, Sir Douglas Berry (1894–1971)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/copland-sir-douglas-berry-247/text17371.

116 Letter from Paul Hasluck for the Secretary, Department of External Affairs to the External Affairs Officer, London, 9 August 1944, NAA: A2937, 275.

117 ibid.

118 Letter from Sir Cecil Hurst, to Mr John Oldham, 28 September 1944, NAA: A2937, 275.

119 UNWCC, Minutes of Forty-sixth meeting, M.46, 31 January 1945, NAA: A2937, 330.

120 For the cases, see NAA: A2937, 119.

121 Interestingly, very few names from List A were subsequently tried in the Australian trials. One notable exception was Lt Col Nagatomo Yoshitada, who was charged in charge no. 19 and listed at no. 65 on List A as the Chief of the No. 3 Branch of Prisoners of War s in Burma. Nagatomo and a number of his subordinates were tried in the Singapore S12 trial.

122 It is not difficult to see why List C cases needed further information. For instance, No. 1 on List C was 'The Commander (as yet unidentified) of a Japanese submarine (as yet unidentified)': see UNWCC approved Lists A, A–Units and C in NAA: MP742/1, 336/1/621 PART 1. At the same time, it is also not difficult to understand why Webb presented this case to the UNWCC: the charge related to the infamous sinking of the hospital ship Centaur, which was torpedoed and sunk by the Japanese in May 1943 off the Queensland coast. See charge no. 11 as submitted to the UNWCC in NAA: A2937, 119.

123 Reported in memorandum for the Acting Secretary, Department of External Affairs, 13 February 1945, NAA: A1066, H45/580/1 PART 1. For a list of Australian cases 'taken on' by UNWCC Committee I, see NAA: A4311, 747/4.

124 'Fourth List of War Criminals Together with List of Suspects and List of Witnesses (Japanese)',  March 1945, p.1, NAA: A12576, 2.

125 See 'For Meeting of Committee I (Facts and Evidence) Tuesday, February 5th at 4 P.M.' and 'Summary Minutes of the Meeting of Committee I held on 5th February, 1946', no. 48, NAA: A2937, 279.

126 The list was not prepared relative to any judgement about importance but in alphabetical order; hence, the Emperor was listed under H for 'Hirohito'. For both lists, see NAA: A2937, 10. For correspondence in relation to the preparation of these lists, see NAA: A6238, 8.

127 United Nations War Crimes Commission, Progress Report adopted by the commission on 19 September 1944,
p. 4, NAA: A2937, 275.

128 Mentioned in UNWCC, Minutes of Seventy-ninth Meeting, 26 September 1945, p. 3, NAA: A2937, 330.

129 'Tentative Proposals regarding the Publication of War Crimes Trial Reports by the Commission', C.200, 27 May 1946, NAA: A1067, UN46/WC/10.

130 Letter from Lord Wright to Maj Gen Thomas H. Green, Judge Advocate General, Washington DC, 8 July 1946, C.211, 16 July 1946, p. 3, NAA: A2937, 288.

131 See the US Library of Congress: https://www.loc.gov/rr/frd/Military_Law/law-reports-trials-war-criminals.html or the United Nations War Crimes Commission Research Project at http://www.unwcc.org/documents/.

132 Unsigned letter to GS Bridgland, 30 October 1947, NAA: A2937, 306. The writer was probably a friend, as the address was to 'Geoff' rather than the far more common 'Bridgland' seen in correspondence.

133 The Australian Government approved publication of its legislation. See memorandum from the Secretary, Department of External Affairs to the External Affairs Officer, London, 22 November 1946, NAA: A1067, UN46/WC/20.

134 Letter from unknown correspondent, Australia House, to Mr KCO Shann, Department of External Affairs,
5 March 1948, NAA: A4311, 766/2.

135 The UNWCC lists of Japanese war criminals, suspects and material witnesses are list nos. 4, 17–24, 29, 33–37, and 46–49 and can be located in a number of files.

136 The second letter in the registration code was usually a country-subject classification, for example R*/G/* – Germany; R*/Cz/* – Czechoslovakia; or R*/P/* – Poland, but sometimes by the country or organisation submitting, for example R*/US/* – United States or R/UN/* – United Nations. Documents submitted by Australia regarding Japanese war crimes were usually registered as either R*/J/* or as R*/Aus/*. Note: R*/Au/* did not relate to Australia but to Austria.

137 The indexes are held in NAA: A2937, 319 and A4311, 743/2.

138 Unfortunately, the preliminary subject index of UNWCC minutes and documents dated 1 March 1946 and the second supplement to this index, also released in 1946, have not been located in Australia. For the first supplement to the index, see NAA: A2937, 277; and for the third and fourth supplements to the index, see NAA: A2937, 306. A copy of the third supplement to the index is also held in NAA: A2937, 277.

139 For chronological lists of 'C' documents from C.1 to C.240 and 'Misc' documents from Misc.1 to Misc.64 with description and date, see NAA: A2937, 288. A more complete version of the second supplement to the chronological lists can be found in NAA: A2937, 306.

140 For this index, see RG67.041 PAG-3/1.0 (reel 33).

141 For this index, see RG67.041 PAG-3/1.0 (reel 36).

66 https://search.archives.un.org/united-nations-war-crimes-commission-unwcc-1943-1948.


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Chapter 3
The United Nations War Crimes Commission and Australia