This article examines the legal issues arising from the Australian trials of Class B and C Japanese war crime suspects that took place between 1945 and 1951, with a view to discerning the various considerations at play in the question of 'victors' justice'. It begins by canvassing the background of the Australian trials, and then turns to consider the procedural and substantive legal issues that surfaced. It is shown that, in many respects, the Australian trials did not meet the international standards of justice that we have become accustomed to today--mainly due to the inadequacies of the war crimes legislation in place at the time. Nevertheless, it is concluded that the 'victors' justice' question unhelpfully frames these inadequacies as ones motivated by revenge, which does not accord with the conduct, for the most part, of the officers of the military tribunal, and the manner in which they interpreted and applied the war crimes legislation and legal precedent. Instead, this article argues in favour of a more beneficial approach to drawing upon the experiences of the Australian trials, one that goes beyond the confines of the assumptions inherent in the question of 'victors' justice'.
In 1985, the late David Sissons, an Australian historian who had dedicated a great part of his life to researching Japan-Australia relations and the post-war Japanese war crimes trials, wrote an article for the Sydney Morning Herald that began with a telling anecdote. It described an incident involving a visiting Japanese author who had brought Mr Sissons a photograph of a monument erected on Mt Sagane commemorating the Japanese men sentenced to death in the Australian war crimes trials, which had inscribed on it the words: '[t]hese trials were nothing more than vengeance, the proud victors exercising arbitrary judgment over the vanquished'. The visiting author had asked him whether he agreed with the sentence--'[t]he question called for a "yes" or "no" answer. I'm afraid my reply must be more complex' was the measured position of Mr Sissons. (1)
In considering the war crimes trials conducted by Australia from a legal perspective and the question of 'victors' justice' that inescapably crops up in a study of this nature, this article arrives at a similar conclusion. These trials, which took place from 1945 to 1951 under the War Crimes Act 1945 (Cth) (WCA), in many respects fell short of the international law standards of justice that we have evolved today. Yet, at least in a great majority of cases, there was nevertheless a notable exercise of legalistic restraint and an effort to achieve procedural integrity (despite the shortcomings of the WCA), which belies a simplistic view that the Australian trials were nothing more than vengeance disguised as law.
There are several ways in which the trials conducted by the Australian military tribunal could be categorised for examination. One way is by the nature of the victim--for example, whether the victim was a civilian or prisoner of war (POW); or by the nationality of the victim. Another method might be the nature of the crimes--whether they were massacres, ill-treatment of POWs, illegal medical experiments and so on. Although a comprehensive study of the war crimes tried by Australia would demand that material be organised under such rubrics, in this article the discussion is organised under the legal issues that emerge from the Australian trials. Individual cases are referred to in the course of discussion, but this article does not purport to examine the range of the 296 trials.
After briefly considering the background of Australia's war crimes trials, this article examines the procedural and substantive legal issues arising from those trials, with a view to discerning the various considerations at play in the question of 'victors' justice'. In so doing, it is hoped that this article will contribute to filling a conspicuous scholarly lacuna in this area of Australian legal history. …