Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume V, London, HMSO, 1948
[Some sections have been highlighted provisionally until hyperlinks can be added to appropriate files. Page numbers precede text]
OF SERGEANT-MAJOR SHIGERU OHASHI AND SIX OTHERS
AUSTRALIAN MILITARY COURT, RABAUL
OUTLINE OF THE PROCEEDINGS
Shigeru Ohashi and Yoshifumi Komoda, together with five other members of
the Japanese Military Police, were accused of murdering a number of named
victims, who were described in the charge as one half-caste and seventeen
natives, on 18th September, 1944.
The accused pleaded not guilty.
2. THE EVIDENCE
showed that during September, 1944, the eighteen victims, who were
civilian inhabitants of New Britain then in the occupation of Japan, were
beheaded at Vunarima after a summary trial for acts of sabotage and other
acts hostile to the Japanese Army and defined as war crimes in their
military code. The accused claimed that all the deceased were guilty of a
conspiracy against the armed forces of Japan in pursuance of which
individual conspirators concealed weapons, stole grenades and rations,
blew up a petrol dump and attacked, on one occasion, a Japanese soldier,
and on another a Japanese civilian. These allegations were not denied.
Defence evidence, which was unrebutted, showed that the native
victims had pleaded guilty to the charges against them after these had
been read out to them. All accused were in court at once and were allowed
to make their explanations. Two prosecution witnesses were produced to
give evidence against them, and the proceedings were interpreted either by
the interpretor or by Komoda. On the other hand, the evidence of the two
witnesses was said to have occupied only about four minutes in all, the
Court conferred for about ten minutes on the verdict, and ten minutes on
the sentence, and the trial as a whole lasted only about fifty minutes. No
defending officer was provided for the victims ; according to Ohashis
evidence this was in view of the time element, and the half-caste
addressed the Court on behalf of all the accused. The executions began
about an hour after the termination of the trial.
Immamura; Commander-in-Chief of the Japanese Eighth Army Group, who
commanded the Rabaul area at the relevant time, said that he declared
Vunarima an emergency area in April, 1944, that where inhabitants of an
occupied territory were charged with war treason or war rebellion they
were under normal conditions sent for trial by court martial, but that
under pressing circumstances unit commanders would have the authority
which had been provided by the Emperor to carry it out on their own for
the protection of the army."
he referred to summary trials in the field, and to the wide discretion
accorded to unit commanders not only as to the convening and constitution
of the courts but also as to the penalty meted out. He further testified
that confirmation of sentence would normally be required and that
confirmation by the Provost Marshal should have been sufficient in the
circumstances of the case.
short, General Immamuras evidence was that the Japanese government had
directed a summary trial in the field for war criminals under certain
operational conditions, and that those conditions existed at Vunarima in
Provost Marshal, Colonel Kikuchi, stated that he confirmed the finding of
the Japanese Tribunal and authorized the execution and that he believed
the trial to be a fair and just one.
evidence of General Immamura and Colonel Kikuchi that in case of emergency
a summary trial could be convened instead of a court martial for trial of
war crimes as defined by Japanese law was supported by documentary
evidence. It. was claimed by the Defence witnesses that the emergency
justifying such a summary trial was a threatened attack by other natives
to rescue the deceased who were then held in custody for investigation of
their alleged war crimes against the Japanese, that Lt. Yamada, who was
not among the accused, decided to hold the summary trial, that the proper
procedure was observed by the Court and that the sentences were confirmed
by superior authority before being carried into execution.
The accused Ohashi and Komoda, with their superior officer Lt.
Yamada, were members of the summary court which convicted the deceased.
Ohashi and Komoda also took part in the execution.
third accused acted as interpreter during the trial and also took part in
other accused were shown to have taken part in carrying out the orders for
the execution of the victims, but not to have been present at their trial
or to have had any knowledge of the nature of those proceedings.
THE FINDINGS AND
and Komoda were found guilty and sentenced to life imprisonment.
other accused were found not guilty.
two life sentences were commuted to sentences of imprisonment for two
years by the Confirming Officer.
NOTES ON THE CASE
JURISDICTION OF THE AUSTRALIAN MILITARY COURT
During his summing up, the Judge Advocate serving with the Australian Military Court which tried the case pointed out that : The charge is one covered by the War Crimes Act 1945 and the jurisdiction of the Court has
established by the unchallenged evidence of the residence of the natives
and the events occurring in an Australian ,Territory.
legal basis, jurisdiction, composition and procedure of the Australian
Military Courts for the trial of war criminals are further examined in the
Annex to this Volume. (Footnote: See p.94)
BINDING ON THE COURT
his summing up, the Judge Advocate set out as follows the rules which the
Court was to observe :
explanatory passages of the Australian Manual
of Military Law were classified by the Judge
Advocate as constituting a strongly persuasive authority. In so
far as it describes the state of international law and does not simply
reproduce the text of the Hague and Geneva Conventions, this Manual
like the British Manual
of Military Law and the United States Basic Field
Manual F.M. 27-10 (Rules
of Lund Warfare), though not a source of law like a statute, prerogative order or decision
of a court, is a very authoritative publication. (Footnote: See
Vol. I of this series, pp. 19 and 32.)
OF THE VICTIMS
Judge Advocate advised the Court that :
stating that the allegations of the accused that the deceased had been
guilty of acts of hostility against the Japanese armed forces had not been
rebutted and were entitled to be believed, the Judge Advocate continued :
advice of the Judge Advocate regarding the rights of the deceased (Footnote:
pp. 30-l.) and
the decision of the Military Court must therefore be regarded as
authorities more particularly on the rights under International Law of
alleged war criminals.
the acts defined as war crimes in Oppenheim-Lauterpacht International
Law, Vol. II, Sixth Edition revised, are the following : (2) All
hostilities in arms committed by individuals who are not members of the
enemy armed forces, (3) espionage and war treason. (Footnote: See
p. 451 of the work cited.)
is later stated that : Private individuals who take up arms and commit
hostilities against the enemy do not enjoy the privileges of armed forces,
and the enemy has, according to a customary rule of International Law, the
right to treat such individuals as war criminals. But they cease to be
private individuals if they organize themselves in a manner which,
according to the Hague Convention, confers upon them the status of members
of regular forces. Espionage and war treason . . . bear a two-fold
character. International Law gives a right to belligerent to use them. On
the other hand, it gives a right to belligerents to consider them, when
committed by enemy soldiers or enemy private individuals within their
lines, as acts of illegitimate warfare, and consequently punishable as war
crimes. . . .
" War treason consists of all such acts (except hostilities in arms on the part of the civilian population, spreading of seditious propaganda by aircraft, and espionage) committed within the lines of a belligerent as are harmful to him and are intended to favour the enemy. War treason may be committed, not only in occupied enemy country, or in the zone of military operations, but anywhere within the lines of a belligerent." (Footnote: Loc.cit., p. 454. In an interesting footnote it is stated that : " The following are the chief cases of war treason that may occur : (1) Information of any kind given to the enemy ; (2) Voluntary supply of money, provisions, ammunition, horses, clothing, and the like, to the enemy ; (3) Any voluntary assistance to military operations of the enemy, be it by serving as guide in the country, by opening the door of a defended habitation, by repairing a destroyed bridge, or otherwise ; (4) Attempting to induce soldiers to desert, to surrender, to serve as spies, and the like ; negotiating desertion, surrender and espionage offered by soldiers ; (5) Attempting to bribe soldiers or officials in the interest of the enemy, and negotiating such bribes (6) Liberation of enemy prisoners of war. (As to the execution, during the first World War, of Miss Cavell, who was nursing in Brussels, on a charge of having assisted allied soldiers to escape, see Garner, ii, ss. 382-386) ;(7) Conspiracy against the armed forces, or against individual officers and members of them ; (8) Wrecking of military trains, destruction of the lines of communication or of telegraphs or telephones in the interest of the enemy, and destruction of any war material for the same purpose ; (9) Intentional false guidance of troops by a hired guide, or by one who offered his services voluntarily : (10) Rendering courier. or similar. services to the enemy.")
provisions of the Hague Convention which define the limits of the category
of persons which enjoy the privileges of armed forces (to use the
same phrase as the authority just quoted) are those contained in Chapter I
(The Status of Belligerent) :
it is said that : " War treason is a comprehensive term for a number of
acts hostile to the belligerent within whose lines they are committed ;
it must be distinguished from real treason, which can only be committed
by persons owing allegiance, albeit temporary, to the injured State. War
treason can be committed by a soldier or an ordinary subject of a
belligerent, but it can also be committed by an inhabitant of occupied
enemy territory, or even by a subject of a neutral State temporarily
staying there, and it can take place after an arrangement. In any case, a
belligerent making use of war treason acts lawfully, although the Hague
Regulations do not mention the matter at all." (Footnote: Oppenheim-Lauterpacht, luc. cit., pp. 331-332.)
espionage the same authority writes, inter
: No regard is paid to the status, rank, position, or motive of a spy.
He may be a soldier or a civilian; an officer or a private. He may be
following instructions of superiors, or acting on his own initiative from
patriotic motives. (Footnote: Loc. cit., p.
331. And see also p. 56 of this volume.)
4. DENIAL OF
A FAIR TRIAL
Judge Advocate further advised the Court that the accused would be
entitled to an acquittal if it had been proved that the deceased had a
fair and reasonable trial, that such trial was of the kind directed by
Japan and that the accused were authorized to take part in such trial and
execution. It was for the belligerent to decide the form of trial
subject to certain fundamental principles of justice.
Judge Advocate continued : .
The Judge Advocate later added : Furthermore you should give close attention to the question of good faith in the accused as regards holding the proceedings at all as that has a direct bearing on deciding what was their attitude during the proceedings, keeping in mind of course their relationship towards Lt. Yamada. . . . You will consider whether at such proceedings the deceased did in fact plead guilty and the effect such a plea would have on the minds of the tribunal in arriving at a verdict and I sentence.
He also pointed out that the executioners would be entitled to the defence of justifiable homicide if it had been shown that each was a proper officer executing a criminal in conformity with his sentence.
The Court found not guilty those accused
who had taken part in the execution of the victims but had not acted as
their judges, including the accused who had acted as interpreter. Those
found guilty were the two accused who had acted as judges at a trial
which, according to the evidence of the Defence themselves, lacked any
representation of the accused by Counsel and occupied only about 50
minutes and was followed rapidly by execution of sentence, in which those
found guilty by the Australian Military
Court participated. It will be noted, however, that the accused
allowed to address the court and pleaded guilty, that the proceedings were
interpreted, and, finally, that the sentence passed by the Australian Military
Court, as commuted, was a relatively light one.
were allowed to address the court and pleaded guilty, that the proceedings were interpreted, and, finally, that the sentence passed by the Australian Military Court, as commuted, was a relatively light one.
Judge Advocate stated that the Court should consider, inter
question whether the proceedings against the deceased were conducted
in accordance with the directions given by Japan. He later added :
You should bear in mind that the accused were soldiers, consider what
orders were given them, and their duty to obey, also the limited
protection afforded subordinates by superior orders as explained in the Manual of Military Law, Australian
Edition, page 288, para. 443, as amended which I will read out to you.
seems therefore that the Judge Advocate was willing to concede that the
plea of superior orders would afford some limited protection if the acts
of the accused were actually conducted as laid down by those orders. The passage from the Australian Manual
of Military Law
which the Judge Advocate referred is in the same terms as the passage from
paragraph 443 of the British Manual,
has already been quoted. (Footnote: See