6 The War Crimes Act 1945 and preparation for trials
The Australian Government's intention to prosecute and punish suspected Japanese war criminals who fell into its hands was relatively clear from 1943 onwards, even if it was not specifically articulated publicly. It was not until the end of the war with Japan approached in mid-1945, however, that minds in Commonwealth departments and the armed forces demonstrably began to turn to the question of the legal machinery for such trials.
Sir William Webb, while in London in early 1945 as Australia's liaison to the United Nations War Crimes Commission (UNWCC), had joined in policy discussions in the United Kingdom on the legal machinery for the British war crimes trials. In particular, Webb was influential in the drafting of the rules of evidence for the British trials. In June 1945 a Royal Warrant, which attached regulations for military trials, was issued in the United Kingdom.245 While a copy of the Royal Warrant was promptly despatched to Australia for reference, the government took little action in relation to the formation of its own policies or procedures in the last months of the war.
However, by September 1945, fuelled by the public release of the first Webb Report into Japanese atrocities, the government came under intense pressure to prosecute and punish suspected war criminals. The question of the legal machinery for war crimes trials was thus transformed into one of urgency.
War Crimes Act 1945
While Australia could have followed a similar path to the United Kingdom and asked the King to issue a Royal Warrant for Australia's use – a method which was considered – the government decided that it was 'preferable that the military tribunals should be established under legislation'.246 The War Crimes Bill, as it then was, was drafted extremely fast – possibly within a few days – in late September 1945 by the Attorney-General's Department, without much consultation with other government departments or the armed forces. On both counts, this is probably why there are so few records which explain the reasons behind the skeletal inelegance of the Bill's drafting, particularly in relation to jurisdiction.247 Having delayed the decision-making for months, the government just needed some legislation in place to provide for trials.
On 4 October 1945, the War Crimes Act 1945 (Cth) – 'An Act to Provide for the Trial and Punishment of War Criminals' – passed both the House of Representatives and Senate, with bipartisan support and without amendment.248 Although the constitutional validity of the legislation was never challenged at the time, Parliament was probably competent, under the defence power in the Constitution, to pass the Act.249 The then Minister for Defence, Mr John Beasley, explained to the House that that the Australian approach to the trials mimicked the British approach, in that military courts would function in a similar way to a field general
courts martial and that:
the Governor-General or a delegate of the Governor-General will have power to convene military courts, appoint officers to constitute the courts and to give effect to the sentences of the courts, and, if necessary, mitigate or remit or suspend any such sentences. A military court is to consist of not less than three officers, and power is given to include in any court officers of allied or associated powers, provided that not more than half the members of the court, excluding the president, are such officers. A military court will have power to sit either within or outside the limits of the Commonwealth for the purpose of trying persons charged with war crimes committed either against a person who has been resident at any time in Australia or against any British subject or person of any allied or associated nation. The measure gives a military court very wide latitude in regard to the matters which it may take into consideration in trying war criminals. It will not he [sic] bound by the ordinary rules of evidence, and power is taken by the act to provide by regulation or rules for the procedure of the courts and for the nature of the evidence which may be received or admitted by the court.250
The Act comprised a preamble and 14 generally worded sections, which:
- broadly described the purpose of the Act
- created and vested powers in relation to the trials in the Governor-General, including
a regulation-making power, and provided for the delegation of those powers
- set out the jurisdiction and application of the Act
- provided for the arrest of persons suspected of war crimes
- defined certain terms, including 'war crime'
- set out the laws and rule of evidence applicable for the trials
- provided for certain punishments.
'War crime', for instance, was defined in section 3 of the Act as:
(a) a violation of the laws and usages of war; or
(b) any war crime within the meaning of the instrument of appointment of the Board of Inquiry appointed on the third day of September, One thousand nine hundred and forty-five, under the National Security (Inquiries) Regulations (being Statutory Rules 1941, No. 35, as amended by Statutory Rules 1941, Nos. 74 and 114 and Statutory Rules 1942, No. 273), committed in any place whatsoever, whether within or beyond Australia, during any war.
The Board of Inquiry identified in section 3(b) was the Board of Inquiry to which Sir William Webb, Justice Alan Mansfield and Judge Richard Kirby were appointed in September 1945, as discussed in Chapter 2. Their Instrument of Appointment included an enumerated list of 35 war crimes based on 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 1919,251 together with a few additional items: crimes against peace, cannibalism and mutilation of the dead. The modified list can be seen in Appendix A.
Of particular note in the Act was the modified rule of evidence provided for in section 9(1), similar to the rule of evidence which Webb helped to draft for the Royal Warrant, which read:
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.
This rule of evidence would prove controversial, both then and now, and is still identified by contemporary critics of the postwar Allied international and national trials as evidence of 'victors' justice' in operation.
Preparations for Trials
Although the War Crimes Act 1945 came into force on 11 October 1945, a number of practical issues had to be addressed and resolved before trials could begin. Indeed, as of only a fortnight earlier, the Army admitted that it had made 'no arrangements … for the conduct of trials of war criminals' and advised that, if it was to be made responsible for the trials, 'questions of jurisdiction, composition and nature of tribunals and methods of procedure' would 'require careful investigation and consideration'.252
Yet, as it turned out, there was a mere seven weeks between when the Act came into force and the first trial began on Morotai on 29 November 1945. In that time, Dr HV Evatt, the Minister for External Affairs and Attorney-General, was agitating furiously about the delay in commencing trials, given that before the Act was passed he had given 'an explicit warning that it was to be followed by speedy action'.253 As External Affairs departmental officer and later war historian Paul Hasluck has related, war crimes were one issue in which Evatt appeared to take a deep personal, as well as professional, interest.254
The most pressing legal issue was the fleshing out of the Act with subsidiary legislation that provided more specific procedures and rules for the trials.255 The Department of the Army, perhaps as payback for the non-consultation over the Act, drafted and presented the Act's principal regulations – the Regulations for the Trial of War Criminals 1945(Cth) – to the Executive Council for approval without first submitting them to the Attorney-General's Department.256
Although purportedly drafted by Commander-in-Chief General Thomas Blamey, the Regulations in fact effectively copied the regulations attached to the Royal Warrant, with only minor amendments to take account of certain military organisational and procedural matters that were different in Australia. The Regulations were issued on 25 October 1945.257 Although comprising only 20 regulations, the final regulation sought to encompass any issue that was not specifically dealt with by instructing:
In any case not provided for in these Regulations such course will be adopted as appears best calculated to do justice.258
As Mr Beasley had made clear in Parliament, subject to the Act and the Regulations, the provisions of the Army Act and the Rules of Procedure relating to field general courts-martial also applied to the war crimes trials.259 Indeed, in practice, a great deal of both the procedural and substantive law applied in the trials came straight from Australian military law. Interestingly, although both the Act and the Regulations are brief by today's legislative standards, the Act was not amended at all during its period of operation in 1945–51. The Regulations were amended twice in 1946 to insert two new regulations to overcome certain problems caused by the drafting of the Act. A separate set of regulations under the Act, concerning the imprisonment of the war criminals, were issued in 1951.260
Another legal issue to be resolved was how to properly delegate the powers created by the Act; otherwise, the Governor-General of the day would have been the only authority lawfully permitted to convene courts, to appoint officers to the courts, to confirm findings and sentences or to deal with punishment.261 The first set of delegations of power, including to the Commander-in-Chief, Australian Military Forces, was dated 24 October 1945 and gazetted the following day.262 Given that the Act allowed for the sentencing of convicted war criminals to death the most contentious delegations were whether military or civilian authority should be delegated to use the powers in relation to the confirmation of sentences and the mitigation, remission, commutation or suspension of punishment. These delegations were the subject of considerable inter-departmental and ministerial correspondence and apparently held up the commencement of the trials.263 The discussions eventually reached the level of the War Cabinet.264
Some argued that there should be some form of independent, extra-military oversight into the Army's processes before death sentences were confirmed and executions ordered. Others argued, however, that leaving the power with the Governor-General or vesting it in another civilian authority would simply introduce unwarranted delay to the process, as it would be more expedient and efficient to also delegate powers in relation to sentences and punishment to senior Army officers.
As General Blamey pointed out on 1 November 1945, the 'necessity' of referring everything to the Governor-General would 'inevitably result in considerable delay' and 'any needless delay in inflicting merited punishment on adjudged war criminals' was 'unwarranted'.265 Blamey and other senior Army figures not surprisingly held the view that decisions about confirming death sentences could be safely left in the professional hands of those officers already delegated to convene war crimes trials and who were already delegated to use similar powers of confirmation of sentences in respect of courts martial involving Australian service personnel, albeit not in relation to death sentences.266 In the end, the decision was made to also delegate the powers in relation to confirmation of sentences and punishment and not to incorporate independent oversight.
In addition to resolving the legal issues, both the Department of the Army and the Army, which were charged with operating the war crimes trials, had a vast task ahead of them to establish administrative processes and procedures for the trials and to allocate personnel and other resources.267 The administrative task was complicated by the lack of clarity as to how the Australian legislation was to operate within an international criminal law context. For instance, it was not initially clear whether the United Nations War Crimes Commission in London or the Australian War Crimes Commission, perhaps through Sir William Webb, had to authorise or approve the convening of a trial in relation to any particular case after having evaluated the evidence.268
The Army's task was also complicated by the difficulty of understanding what Parliament intended in certain sections of the Act and translating that into practical operation. For instance, section 7 of the Act provided that:
A military court shall have power to try persons charged with war crimes … against any person who was at any time resident in Australia.
A flurry of internal Army correspondence ensued in late 1945 in an attempt to clarify the meaning of both 'resident' and 'Australia'. For instance, were 'native' or Chinese residents in Australia's mandated territories 'resident in Australia' for the purpose of the Act?269 While the Army's Adjutant-General eventually distributed on 26 November 1945 a three-page memorandum on 'Trials of War Criminals', which outlined the general administrative procedure to be followed,270 the lack of detailed explanation on the operation of the trials or how they were to operate in conjunction with the trials of other Allied powers meant that numerous questions seeking clarification or guidance were sent to the Army Headquarters in Melbourne. As a consequence, various departments and the Army, as well as interested parties such as Sir William Webb, continued discussing and settling aspects of the trial policies and procedures for the next several years. For instance, Webb was asked in December 1946 for his 'views' on bringing Australian prosecution policy into line with British prosecution policy, which was by then 'mainly that only cases which warrant a sentence of death or of imprisonment for a least seven years will be tried'.271 As time passed, the necessity of finding new locations in which to hold trials and, indeed, whether the trials should continue at all, imposed further matters for consideration, which will be discussed in Chapter 7.
The present status of the War Crimes Act 1945
The War Crimes Act 1945 is still in force as of 2019; however, it was significantly amended in the late 1980s in order to prosecute persons who had allegedly committed 'serious' war crimes in the European theatre of World War II and subsequently entered Australia and become citizens or residents. The amended version of the Act still on the statute books thus bears no resemblance to the Act that was in force during the period 1945–51.272 Unlike the immediate postwar period, when the Act was administered by the Department of the Army, the amended Act is administered by the Attorney-General's Department. Under s21 of the amended Act, the Attorney-General's Department is required to prepare a report to be laid before Parliament on the operation of the Act, including particulars of how many suspected offences against the Act were under investigation or in relation to which prosecutions had commenced. These reports almost routinely report nil action, apart from receiving the occasional request from other countries for extradition or assistance.273
Both sets of regulations issued pursuant to the Act were entirely repealed in 1955 and no further regulations have been issued.
Overview of the records
The National Archives holds a variety of records on the passage of the War Crimes Act 1945, (although not many that explain the drafting)and the preparations for trials to commence. This chapter sorts records into several sections:
- files relating to the War Crimes Bill and Act 1945
- delegation of powers
- preparing for the trials
- trial procedures and other issues;
- policy regarding death sentences and executions
- Allied liaison matters.
Files held at the Australian War Memorial are listed separately at the end.
246 Commonwealth, Parliamentary Debates, House of Representatives, 4 October 1945, p. 6510 (Beasley). For an unattributed report on the British Royal Warrant undertaken to consider the legislative 'action necessary' to institute war crimes trials by Australia, which considered various alternatives, see 'Royal Warrant and Regulations for the Trial of War Criminals: Action Necessary to Constitute Australian War Crimes Courts', n.d., NAA: A472, W28681 In Webb's view, either a Royal Warrant or legislation was an option open to Australia but the decision was 'a political one upon which I venture to express no opinion': letter from Sir William Webb to
Dr HV Evatt, 30 January 1945, NAA: A2937, 222.
249 For a memorandum on the jurisdiction, see Director of Prisoners of War and Internees, 'Jurisdiction of Australian Military Courts', 21 November 1947, NAA: MP742/1, 336/1/1452 PART 2. On jurisdiction, see Tim McCormack, 'Jurisdiction of the Australian Military Courts 1945–51', in Georgina Fitzpatrick, Timothy McCormack and Narrelle Morris (eds), Australia's War Crimes Trials 1945–51, Leiden: Martinus Nijhoff Publishers, 2016, pp. 61–102.
250 Commonwealth, Parliamentary Debates, House of Representatives, 4 October 1945, pp. 6510–11 (Beasley).
251 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.
254 Paul Hasluck, Diplomatic Witness: Australian Foreign Affairs 1941–1947, Melbourne: Melbourne University Press, 1980, pp. 132–33.
255 The Act provided the Governor-General with the power to make regulations or rules on certain specified and necessary or convenient matters: War Crimes Act 1945, s 14.
256 Department of the Army, 'Memorandum for the Secretary', October 1945, NAA: A472, W28681. The Attorney-General's Department also did not appreciate the non-consultation, as can be seen by correspondence in this file.
257Regulations for the Trial of War Criminals (Cth), Statutory Rules 1945, no. 164, made on 25 October 1945 and notified in Gazette on 26 October 1945. The regulations 'as made' in 1945 are available in full on the Federal Register of Legislation: www.legislation.gov.au.
258 ibid, r 20.
259 See War Crimes Act1945, s 10. Commonwealth, Parliamentary Debates, House of Representatives, 4 October 1945, p. 6511 (Beasley). The Army Act and Rules of Procedure can be found in the Australian edition of the Manual of Military Law 1941, as amended, Canberra: Commonwealth Government Printer, 1941.
260 War Crimes (Imprisonment) Regulations 1951 (Cth), Statutory Rules 1951, no. 11, made under the War Crimes Act 1945 (Cth) on 16 February 1951 and notified in Gazette on 22 February 1951. The regulations 'as made' in 1951 are available in full on the Federal Register of Legislation: www.legislation.gov.au. For more information on these regulations, see Chapter. 8.
261War Crimes Act 1945, ss 5 and 6.
262 See the helpful list of delegations made under the Act from October 1945 to June 1950 in NAA: MP742/1, 336/1/452. Ordinarily, delegations were worded so that they were made to every officer who at any time while the delegation was in force occupied a certain office or performed the duties of that office, rather than to specific persons. An exception was the delegation made by name to Lt Gen VAH Sturdee, then Chief of General Staff, on 20 March 1946.
263 See the very annoyed message from Mr Frank Forde, Minister for the Army to the Secretary of the Department of the Army suggesting that the Secretary had not conveyed his repeated instructions to the Army in October 1945 that it was to immediately issue instructions for the commencement of trials, even though delegations of powers in relation to findings, sentences and punishment had not yet been made, as these delegations 'cannot be regarded in any way essential or necessary to the conduct of such trials'. Forde described the delays as 'totally inacceptable [sic]' and 'incomprehensible': teleprinter message, 22 November 1945, NAA: MP742/1, 336/1/622.
267 For information on the Army's Directorate of Prisoners of War and Internees, which administered the trials, see Chapter 4.
270 Adjutant-General, Memorandum on 'Trials of War Criminals', no. 151625, 26 November 1945, NAA: MP742/1, 336/1/382. For other administrative instructions issued, see NAA: MP742/1, 336/1/1143. The brevity of the Australian instructions for war crimes trials can be contrasted with the British instructions set out in Allied Land Forces, South East Asia, War Crimes Instruction No. 1. The second edition of Instruction No. 1 is 15 pages long, plus appendixes A–M: see NAA: A4311, 747/10.
273 The annual reports are available on the Attorney-General's Department website: http://www.ag.gov.au/Publications/Pages/default.aspx.