In the wake of the Second World War, the Allies established a pro-gram of trials to prosecute Axis war crimes and crimes against humanity. It was ambitious: there was no precedent for holding individual men criminally responsible for starting a war, and very little precedent for trying leaders for crimes against humanity. And while war crimes trials had been held after the First World War for soldiers and officers accused of conventional war crimes, they were widely considered to have been a failure. However, the Allies took the view that the aggression of the Axis powers and the gargantuan scale of their atrocities in the countries they conquered demanded formal trials, to prevent the horrors of the Second World War from being repeated.

The Holocaust in Europe provided the central justification for the war crimes trials program. But the attempt by the Japanese armed forces to create the Greater East Asia Co-Prosperity Sphere (Dai Tōa Kyōeiken) was also brutal. The Burma Railway, the Rape of Nanking, the comfort women system of sexual slavery, and the Bataan Death March remain symbols of this brutality throughout the world. It is now accepted everywhere outside a clique of nationalist writers and politicians in Japan that Japan was responsible for massive war crimes against Allied prisoners of war and civilians throughout Asia and the Pacific. For example, 27 per cent of western Allied prisoners died in Japanese captivity, compared to 4 per cent of those held by the Germans and Italians. Aside from outright execution through shooting, bayoneting or beheading, thousands died from starvation, forced labour, beating, torture, and exposure to the elements.

The centrepieces of the Allies’ program were two international tribunals. One which sat at Nuremberg in 1946 known as the International Military Tribunal (IMT), and one which sat in Tokyo between 1946 and 1948 known as the International Military Tribunal for the Far East (IMTFE); it was less important to the major Allies. The United States, the United Kingdom, France and the Soviet Union were on both tribunals, and the Tokyo Tribunal also included Australia, Canada, New Zealand, Nationalist China, the Netherlands, India and the Philippines. These courts tried the surviving leaders of Germany and Japan for starting wars in violation of international treaties (classified as class-A war crimes, although the term was mostly used only in the East); for conventional war crimes, or crimes committed during a war (class-B war crimes); and for crimes against humanity (class-C war crimes).

At the same time, individual countries conducted war crimes trials throughout Europe and the Asia-Pacific, trying ordinary German and Japanese soldiers. Around 5,000 Germans were convicted by the Western Allies in the Subsequent Nuremberg Trials and other tribunals, and over 50,000 Germans and other Axis personnel were prosecuted in Eastern Europe. A further 18,000 were prosecuted by the domestic courts of East and West Germany, a process that has continued since the war.1 At the time of writing, the most recent trial was in 2016, of Reinhold Hanning, a 94-year-old former member of the SS, convicted of being an accessory to murder at Auschwitz.2

In the Pacific, seven Allied governments – Australia, the United Kingdom, Nationalist China, France, the Netherlands, the Philippines and the United States – tried at least 5,677 suspects in fifty locations for class-B and -C war crimes. The majority were convicted, with 984 condemned to death, 475 to life sentences, and 2,944 to other prison terms.3 Most of the defendants were Japanese, but they included some 300 Koreans and Taiwanese serving in the Japanese armed forces. Communist China and the Soviet Union did not participate in the class-A/B/C system, but held similar trials of their own.

Australia played an active role in the war crimes trials program in the Asia-Pacific at both levels: as a member of the IMTFE, where Queensland judge Sir William Flood Webb served as the tribunal’s president; and by conducting 295 trials of 814 officers and men of the Imperial Japanese Army and the Imperial Japanese Navy accused of class-B and -C war crimes. These trials were held in the territories of what are now Malaysia, Singapore, Hong Kong, Indonesia, Papua New Guinea, and Australia itself. Of the defendants, 280 were acquitted and 644 were convicted (some individuals were defendants at multiple trials, hence the total of 924). A hundred and thirty-eight were executed – 114 by hanging, 24 by shooting – and 498 were given prison sentences of varying lengths.4

This was the first time Australia had taken an independent role in the enforcement of international law. The Australian government committed itself deeply to the task, guided by Herbert Vere Evatt, a lawyer and historian who served both as Minister for External Affairs (Foreign Minister) and Attorney-General from 1941 to 1949. Evatt’s later career was troubled by mental illness, but throughout the 1940s he was one of the world’s major proponents of international law, serving as President of the United Nations General Assembly from 1948 to 1949, and acting as one of the drafters of the Universal Declaration of Human Rights.

Evatt’s most visible influence on the war crimes trials process lay perhaps in Australia being regarded as the most legalistic of the Allies. This can be seen in four characteristics. First, Australia was one of the first of the Allies to begin investigating and documenting Japanese war crimes and pushing for trials in the Far East. The Australian Army commissioned the Allen Inquiry into war crimes in Papua New Guinea in May 1942, while the Japanese were still on the offensive. Queensland judge Sir William Webb led three inquiries between 1943 and 1945 before presenting his evidence to the United Nations War Crimes Commission in London and then joining the Tokyo court. The Webb Reports, commissioned by Evatt, were an important and very detailed record of Japanese war crimes for the Allies.

Second, the Australian government was one of the strongest advocates among the Allies for prosecuting Emperor Hirohito as a war criminal, despite the strong practical reasons for not doing so. He had agreed to co-operate with the American authorities, and leaving him in power facilitated a smoother transition in Japan from totalitarianism to democracy. However, the Australian government maintained that it would be unjust to execute Japanese soldiers for war crimes and fail to prosecute the Emperor, who was the notional leader of the Japanese state and armed forces. Australia insisted that the trials be based on actual responsibility for crimes rather than political considerations.

Third, Australia was determined to follow a rigorous process in its own prosecution of war criminals, shown by the high acquittal rates of Australian courts: 29 per cent. By comparison, American courts acquitted 13 per cent of defendants, and British courts 11 per cent. Just 5 per cent of defendants before Dutch courts were acquitted, although the Dutch prosecutors generally only brought cases to trial if they had a high chance of success. Only the Nationalist Chinese courts, which acquitted 30 per cent, had a higher rate than Australia.5

Finally, when it came to the trials, Australia was the most tenacious of the Allies. It was the last country to try Japanese war criminals, in 1951, even though this involved holding suspects for years without trial (one of the most controversial aspects of the Australian trials), and resisting pressure from the US to end the trials. Australia was the last of the Allies to execute Japanese war criminals (also in 1951), the last of the Allies within the formal class-A/B/C system to hold convicted Japanese war criminals in prison outside Japan, and one of the last to consent to have them paroled and released.

The Australian government’s position was always, in its own words, justice rather than revenge. Speaking in London shortly after the end of the war, Evatt summarised his approach by saying that ‘in its demand that all Japanese war criminals be brought to trial, the Australian Government is actuated by no spirit of revenge, but by profound feelings of justice’.6 Others took a similar view, including some high-profile former prisoners of the Japanese. Sergeant Adair Blain, Independent Member of the House of Representatives for the Northern Territory from 1934 to 1949, remains the only sitting Australian member of parliament to be held as a prisoner of war. On his release from Changi he commented: ‘While we must see that stark justice is meted out to their responsible leaders, and that the memory of the consequences of the acts are never forgotten by them, we must also apply the principles of justice in the detached, inexorable spirit ever associated with British rule. We must teach them that it is possible for them to live in peace with us, to greater advantage than they can live in enmity.’7

The Tweed Daily ran Blain’s remarks under the headline ‘Blain Urges: Treat Japs Like Bad Children’, suggesting the paper’s subeditors were unconvinced. Indeed, the trials took place against a backdrop of violent anti-Japanese feeling in Australia and among its Allies. Public opinion ran strongly against anything resembling leniency, and many voices in the popular media were quite keen on revenge.

American historian and journalist Allan Nevins wrote that ‘probably in all history, no foe has been so detested as were the Japanese’.8 Allied propaganda portrayed the Japanese as a unique enemy, different from and worse than the Germans, Italians, or others which had been fought before. It compared the Japanese to termites, implying that soldiers were so fanatically loyal to their country and Emperor they had virtually ceased to be individuals. There was understandable horror at the brutality of the Japanese Army and Navy. And their practice of pretending to surrender before opening fire or booby- trapping the dead and wounded made it easy for soldiers at the front lines to con-clude that ‘the only good Jap was a dead Jap’, a view that spread to civilians as well.

General Thomas Blamey had told Australian soldiers going into battle that the Japanese were ‘a subhuman beast’ and ‘a curious race – a cross between the human being and the ape’.9 Officers observed that the Japanese brought out a killer instinct in otherwise mellow Australian soldiers.10

Ironically, this raised something of a conundrum. If the Japanese were brutal, subhuman, and incapable of deciding right from wrong, what was the use of placing them on trial at all? As an opinion column in the Riverine Herald in April 1945 argued: ‘They [the Japanese] have placed themselves in a position where mercy would be wasted upon them. They chose to act like savage beasts of the jungle, and as such they should be treated. They have forfeited all right to human consid-eration and must be driven back to the lair whence they should never again be allowed to emerge as a military power.’11

The Allies, however, had goals beyond the enforcement of inter-national law. They wanted the war crimes trials to also facilitate Japan’s transition to democracy, by establishing that its wartime leaders were criminals. But while individual Japanese in the govern-ment and the armed forces could be held responsible for the brutality, the general public and the Emperor they revered would be absolved. In this the Allies generally succeeded, and Japan became a peaceful democracy, although the role of the trials in this process was disputed. Additionally, the European colonial powers, who had been discred-ited in the eyes of their Asian subjects by the rapid Japanese victories of 1941–42, could show that their rule represented justice. In this they failed, and the war crimes trials ended up becoming entwined with East Asia’s often-troubled transition from colonialism to self-rule.

Inevitably, with so many legal and political aims, the war crimes trials in the Far East were subject to criticism. The entire Allied program of trials, in both theatres, was criticised on broad and particular grounds. Broadly, critics argued that some of the ‘laws’ being enforced by the trials had been invented out of thin air, and although they deplored the atrocities of the Germans and Japanese, there was no basis for convicting an individual of a war crime. And while there was a precedent for prosecuting soldiers for war crimes, there was no basis for prosecuting someone for waging an aggressive war or committing a crime against humanity.12

To the critics, the trials violated the ancient legal principle of ‘no crime and no penalty without a law’. As Harlan Fiske Stone, Chief Justice of the US Supreme Court, wrote in a letter to a friend of the Chief American Prosecutor in Nuremberg: ‘Jackson is away conducting his high-grade lynching party in Nuremberg. I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.’13

Furthermore, some of the defendants, in both courts, argued that the Allies were guilty of war crimes themselves. The brutality of the Soviet Union and the indiscriminate bombing of German and Japanese cities were highlighted.

Specific criticisms of the Tokyo Trial included the claim that the entire thing was a charade to protect the Emperor, that there was too much focus on conspiracy rather than the responsibility of the individual defendants, and that major crimes against Asians were sidelined in favour of the attack on the British Empire and the United States in December 1941. While sexual slavery was among the crimes against humanity prosecuted, the Allies did not go so far as to expose the organised, empire-wide system of comfort women, nor did they make any mention of the Japanese Army’s Unit 731, which performed chemical and biological experiments on thousands of Chinese. Additionally, the tribunal in Tokyo suffered from translation issues and a series of procedural difficulties that saw it drag on for nearly two years. While Nuremberg remains celebrated in spite of its flaws, Tokyo has not fared so well. Kirsten Sellars, for example, described it as ‘deeply flawed’ and ‘the very blackest of courtroom dramas’, particularly compared with its European equivalent.14

In some ways, the class-B and -C trials conducted by the individual Allies look better in history’s judgement than Tokyo. They dealt with conventional war crimes, which were established in international law and could be brought home, albeit with some difficulty, to individual perpetrators. They too, however, have come under criticism. Translation was again a big problem, as few Westerners could speak Japanese well enough to translate legal proceedings; nor could many Japanese speak Western languages at a sufficient level. The Western Allies accepted evidence to a lower standard of proof than they did in their domestic courts. As with Tokyo, the trials were accused of prioritising crimes against European victims over non-European ones, although the Australian trials also dealt with many offences committed against Chinese prisoners of war, Malays and Papuans. Additionally, there were specific criticisms of the Australian approach, which Sandra Wilson summarised in her research on the trials as ‘the patchy application of the death sentence, the relaxation of the rules of evidence, the incomplete defence of “superior orders”, controversy over command responsibility and inconsistency in sentencing’.15

As trials throughout the Asia-Pacific continued, some commentators began to fear that they were not having the desired effect. The differences between Western and contemporary Japanese concepts of law, justice and individual responsibility made for an unbridgeable chasm. George Caiger, an Australian intelligence officer attached to General Douglas MacArthur’s staff who had spent ten years teaching English in Japan, wrote in the Sydney Morning Herald in February 1946:

About one Japanese in a million realises that these trials are establishing a new precedent in human affairs – the very idea of a precedent in law is totally strange to them. The Japanese can understand victors shooting the conquered. They feel that the elaborate legal processes being followed merely witness the weakness of the Allied cases. Unless the full significance of the trials is patiently and clearly explained to the Japanese through their Press, radio, and cinema, they will either scorn us for being sadists as we now scorn them, or be flattered by the attention (as when no less than five American generals look part in [General] Yamashita’s trial), or brood over it with plans for ultimate revenge . . . A few Japanese now admit that atrocities were committed. They want their perpetrators punished for bringing shame on Japan, not because they were crimes against humanity. The majority of Japanese merely accept these trials as examples of the curious behaviour of Western conquerors. To them it seems a rather cumbersome and expensive way of revenge.

‘Revenge’ became the word most commonly associated with criticism of the war crimes trials. Many individual Japanese soldiers struggled to understand why they were being charged for simply following the orders of their superiors with the unquestioning obedience that had been expected of them. Naval Paymaster Gōto Daisaku, convicted by an Australian court and executed by firing squad at Rabaul on 17 August 1946, wrote a statement condemning the Allies for their own war crimes, including the use of atomic bombs on Japanese cities. His conclusion was: ‘War crimes laws were written by the victors for their own purposes. It was an act of revenge under the guise of law.’16

As the trials in the Far East continued, for months and then years, criticism mounted on all sides. Nuremberg was wrapped up and the death sentences carried out in 1946, but Tokyo staggered on until 1948. As the United States pushed for rapprochement with Japan and its rehabilitation as a Cold War ally, Australia was still trying Japanese war criminals or, worse, holding them without trial. The Australian trials went on until 1951 – some Japanese suspects did not face a court for six years – and by then they had become unpopular. As Labor MP Tom Burke of Perth told the House of Representatives during a debate in 1953:

The system of war trials which we have adopted brings us down to the inhuman level of those whom we propose to bring to trial for atrocities committed under the strain and stress of war . . . Was the purpose of those trials to wreak revenge on those who had broken the legal or moral laws of civilized nations? Have those trials succeeded in deterring others from breaking the legal or moral laws of civilized nations? Was the purpose of the trials to attempt to prevent future wars, and if so, has that objective been achieved? I do not believe that the future peace of the world is any more assured because of them. Indeed, I believe that the whole basis on which the war trials were initiated has been falsified by the results that have been achieved.17

Australia had in the late 1940s looked on with unease at the shift in American attitudes from seeing Japan as a threat to seeing it as a potential bulwark against communism in the Far East. But by 1953 the Australian government was coming to the same view. And, of course, keeping the war criminals imprisoned (then on Manus Island) was expensive and troublesome. Between discomfort over the trial process itself and the desire to improve relations with Japan, the Australian government did not make a great deal of effort to uphold the judgements. By the end of 1953 all the class-B and -C war criminals held by the Allies had been returned to Japan. By the end of 1958 all of them, including those sentenced to life imprisonment, had been quietly released.18

Once they ended, the Pacific trials faded quickly from the public consciousness, particularly in the prosecuting nations, but even to some extent in Japan. Nuremberg remains the great beacon of international law and justice; Tokyo is in the shadows. People may have a dim awareness of the class-B and -C war crimes in Europe, such as the Dachau Trials, but the class-B and -C war crimes in the Pacific are almost unknown. Few Australians are aware of the Australian program of trials, despite its scale and importance to Australia’s role in the international community.

David C.S. Sissons (1925–2006), an interpreter at Morotai in 1946, was for his entire life the leading expert on the Australian trials. He accumulated a vast amount of information which later researchers have found invaluable, but published little himself. American Philip R. Piccigallo’s 1979 book The Japanese on Trial remains a good source for the class-B and -C trials generally, but until recent years the Australian trials had only a handful of articles and book chapters devoted to them. In the last few years, work by Georgina Fitzpatrick, Sandra Wilson, Emmi Okada, Yuma Totani, Robert Cribb, Beatrice Trefalt and Dean Aszkielowicz has gone a long way to correcting this, particularly with the 2016 publication of Australia’s War Crimes Trials, 1945–51. But there is still little knowledge of or interest in the subject on the part of the general public.

This book is therefore an attempt to bring back to the attention of the public Australia’s program of war crimes trials, and to revive the debates that accompanied them. Were the trials fair? Were their goals realistic? Were they justice, as was claimed at the time, or revenge? That final question deserves more than a one-word answer, but the historical consensus is that, despite their flaws, they cannot be dismissed out of hand as victors’ justice. There is a lot to be learned from them, both from their successes and their failures, and they should not remain forgotten or ignored.