Trials of Japanese War Criminals in the Netherlands East Indies (1946-49)

[WJHopwood]

The current (January 2015) issue of the Journal of Military
History carries an interesting and informative article titled
"In the Name of the Queen," the main theme of it being that
the war crimes trials conducted in the NEI, although not
often covered by historians, were unique in military history,
By way of background, the article tells that at the
end of WWII, the United Nations War Crimes Commission
gathered evidence of war crimes committed by the Axis
powers but while the international tribunals at Nurtenburg
and Tokyo were established to hear evidence against
high-level Axis political and military figures known as Class
A war criminals, it was left up to the courts of the individual
Allies to prosecute lesser war crimes made by those known
as Class B and Class C war criminals.
Accordingly, In the Far East military tribunals to
conduct Class B and C trials were set up in a variety of
locations such as Manila, Singapore, Shanghai, Guam,
Kwajalein, and many other places, the Netherlands East
Indies being one of them. However, the trials conducted by
the Durch in the NEI were different from thoae conducted
by the other Allies in four respects:
First, the Dutch took a different approach when
they created a different legal system for trying the Japanese
by departing from their own nation's "civil law" tradition and
opted to use so-called "customary law" as the basis for the
establishment of war crimes.
Second,, differing from the war crimes trials
conducted by other Allies in the Pacific theatre, the Dutch
established advance sentencing guidelines that restricted
the punishment which could be given to those Japanese
convicted of war crimes,.
Third, the Dutch took careful pains to pre-empt
charges that their trials were conducted in the tradition of
"victor's justice" or "kangaroo courts." They did this by
requiring that the officers making the judgement as to guilt
and the punishment to be imposed must disclose before a
three-judge panel of judges the reason for the verdict along
with an explanation for choosing a particular type of
punishment to be given for the offense. There were only two
kinds of punishment which could be rendered depending on t
the degree of the offense, death, or a required number of
years to be served in prison.
Fourth, under the Dutch system, one convicted of a
crime could appeal for clemency or a pardon.

According to the statistics which accompanied the article, a
total of 438 separate war crimes trials were held in the NEI.
There were 1038 Japanese tried . Of that number, 236 or 23%
received the death penalty and went to the gallows.
Twenty-eight were sentenced to life imprisonment. Fifty-five
were found "not guilty." A total of 705 received prison terms
less than for life, and there were 55 who were "acquitted" by
the 3-judge final review panel which the article says
"...suggests that the three-judge panels were not predisposed
to find defendants guilty as charged."

END OF PART ONE MORE TO FOLLOW

WJH

[WJHopwood]

On Sunday, January 18, 2015 WJHopwood wrote:

PART TWO AND CONCLUSION

Athough in the NEI the Dutch authorities had
elected to conduct their trials of Japanese
accused of war crimes in accordance with "the l
aws and customs of war," Dutch officials in the
Netherlands took a different approach in their war
crimes trials of accused Nazi occupiers and
followed the Dutch official penal code for offenses
and punishm ents to be imposed.
The main reason for the different NEI
approach was that it provided a more flexible
approach for the prosecutors. For instance, there
was no criminal statute in the NEI which covered
such charges as "withholding medical help and
supplies to POWs,"" unlawful executions," or "the
imposition of collective punishment"all of which
could be applied to the widespread nature of
criminal activity of the Japanese occupiers and
recognized as such under the international law
provisions of the"customary law" approach
adopted in the NEI.
Accordingly, in the NEI, in place of the local
criminal codes, a series of judicial "Decrees" were
issued, perhaps the most important being Decree
44 which defined war crimes as those crimes "
which constitute a violation of the law and usage
of war committed in time of war by subjects of an
enemy power or by foreigners in the service of
the enemy."
In following the NEI "customary" approach,
Decree 44 therefor used the list of 22 named war
crimes identified as iolations of "the laws and
usages of war" by the 1944 United Nations War
Crimes Commission." To that list, NEIadded an
additional 12 offenses considered by NEI
authorities to be appropriate to their own
circumstances but not covered specifically in
the UN War Crimes list.

One NEI added offense was not used by any
other war crimes tribunal in the Far East and
one which no modern judicial system has ever
accepted --the idea of "group" or"collective
responsibility"defined in NEI Decree No,45 as
follows:
,,,,,"If a war crime is committed within the framework
of the activities of group of persons in such a way that
the crime can be ascribed to that group as a whole, the
crime shall be considered to have been committed by
that group, AND CRIMINAL PROCEEDINGS AND
SENTENCES PASSED ON ALL MEMBERS OF THAT
GROUP." (Emphasis mine.)

The Journal of Military History article i have cited herein
goes on at considerable length (it totals over 30 pages in
tiny print) to outline in detail a number of various trials
conducted by the NEI "temporary court martials" and
points out that by the time the trials got started in 1946
many of the Japanese military personnel who had
committed war crimes had long since left the islands
and could not be located and prosecuted. However, the
article does outline in considerable detail a number of
trials that were prosecuted ifor the following offenses:
Systematic terrorism; Mistreatment of POWs and
Internees;:Unneccesarily exposing POWs to Acts of War;
Using POWs in War Work; Mass Murder; Unlawful
Execution; Hostilities Contrary to the Terms of Armistice.

In concluding, the article notes that "other than the United
States, no other country prosecuted more Japanese
nationals for war crimes committed in the Pacific than
did the Netherlands." The article also summarizes by
stating that in prosecuting such crimes,the Dutch
authorities "embraced a unique and radically new legal f
ramework that was different from anything else they had
used previously and that broke new ground in
international law" by a number of firsts as the only
national tribunals to prosecute by groups; the only war
crimes courts to have guidelines in sentencing; the first
tribunal to prosecute "enforced prostitution as a war
crime; the only tribunal to prosecute "systemic t
terrorism;as a war crime; the only tribunal to prosecute
enemy soldiers for committing hostile acts in violation
of a truce.

War crimes committed by the Japanese against NEI
citizens were,the article contends, "a manifestation of
the race war triggered by the (Japanese) "Asia for Asians"
ideology and the Code of Bushido; the severity,
viciousness, and the widespread nature of the crimes
during the occupation of the Indonesian
archipeligo reflect these two factors and the records of
the war crimes tribunals contain overwhelming evidence
to support this view.."

WJH