299 Kirby to Evatt and Dunk

Cablegram 114 BATAVIA, 9 June 1946

TOP SECRET MOST IMMEDIATE

PART I Reference telegram 112 [1] from Brookes and letter referred to in that telegram. [2] Sjahrir is proceeding with preparation of counter proposals [3] according to draft set out in Brookes' telegram 113, but has not yet presented them. On reading Brookes' telegram 112 and the letter referred to therein I think Sjahrir rather clumsily expressed his intention which was not to make a formal request to Australia for intervention by UNO at that stage but to indicate that when his counter proposals are turned down by the Dutch as he is certain they will be he will then make a formal request to Australia to the effect indicated. In this way Sjahrir believed Australian Government could be prepared for the request in advance and that if thought advisable the Government could unofficially indicate its attitude to me to such a request and if and how the Government would like it made. As I happen to be an Australian on the spot with no official representative position Sjahrir will probably ask me to return to Australia with a request which could be received if desired without public announcement until such time as Government desired. Would appreciate urgent advice in anticipation of request by Sjahrir for me to act as indicated.

Since writing the above I have learned that whilst Soekarno has definitely agreed with Sjahrir and cabinet to the request for Australian intervention through UNO he had previously made unofficial approaches to Nationalist leaders in India to raise the issue on their behalf with the Government of India. As long as Indian troops and journalists are here Soekarno will continue to have unofficial contact with Nationalist leaders in India and I should think would not hesitate to make similar appeal to India should other alternatives fail.

PART II Further my 111.

1. After seeing Sjahrir I have been consulted by his departmental legal officers who suggested trial [4] by Indonesian Court with Australian observer but I flatly refused to discuss this.

Interview however was extremely amicable and I feel certain that at any time now Sjahrir will carry out suggestions set out in paragraph 2 of III [5]

2. Subject your approval I have always envisaged trial by military court set up by AFNEI in Batavia. In fact mentioned this to Mountbatten before his departure but I did not make a feature of this as I thought AFNEI would in that way deal itself with all offences of a military nature as occupying force. He indicated general approval of my plans but said I was to ask Mansergh to carry out my requirements first and only invoke SAC authority if Mansergh considered he could not act without it.

3. Since my arrival in Batavia I have been informed that all offences by non-military personnel whether of a military nature or not are tried by Civil Affairs Courts and that this has been ordered by War Office. The fact is that these courts are exclusively conducted by Dutch Law Officers.

4. Because of information set out in paragraph 3 I feel it should be assured before the suspects are handed over to AFNEI that AFNEI will set up military court and not (repeat not) hand them over to a court conducted by Dutch officials which would not, I take it, be countenanced by Australia.

5. At first I intended to get prior undertaking by Mansergh- (1) to retain custody of suspects by AFNEI once custody was obtained;

(2) to set up military court to try them;

(3) not (repeat not) to put a Dutch member on the Court.

6. In spite of unofficial endeavours to get some advance idea of Mansergh's probable attitude to a request by me as set out in paragraph 5 I have no real anticipation of his attitude.

7. Therefore as at present informed I feel it might be a big risk to have the suspects handed over to AFNEI without being sure of the three matters set out in paragraph 5.

8. As the War Office evidently involved by having given some instruction to the effect set out in paragraph 3 I thought I should ask you for instructions as to whether to approach Mansergh first and if refused SAC or whether it would be better for you to raise the matter with the Government of the United Kingdom so that the matter could be dealt with on a higher level. In case of a change of circumstances here it might be advisable to let me know of your intention to take latter course before acting.

9. My hesitation in approaching Mansergh is that the Dutch may hear of the matter and complicate the whole position by making a request that they as the de jure sovereign power exercise the right to try the suspects or by making a demand for the trial to be by the usual Civil Affairs Court especially if there has been some agreement that such Courts should try all offences by non- military personnel. I do not think it wise to place too much reliance on Van Mook's statement referred in paragraph 1 of my telegram III. [6]

10. Although I have not yet succeeded in obtaining the evidence against the suspects possessed by the Indonesians their departmental officers informed me and I believe that there is no doubt of proof of their guilt and that confessions have been made by each of them.

11. Because of the general situation the question of trial may not be considered as immediately important as formerly by the Minister and a false step in regard to it might seriously prejudice more important matters. I think it important also to remember that if the information in paragraph 10 is correct investigation into background suspicions may be more important than the trial of the actual perpetrators.

12. In view of the delicate situation you may prefer me to return and have the benefit of discussion and advice before taking any definite step and even if Sjahrir offers to hand over suspects to AFNEI I will await instructions before I let him announce such offer or implement it. I expect this offer by Sjahrir to be made at any time now.

13. If I were required by you to return with the request by Sjahrir mentioned in part I the other matters could be held in status quo pending conference and instructions.

14. The above has been written to keep you fully posted and to give you the opportunity to give me special instructions if you desire but if you think it advisable I am fully prepared to handle this matter of custody and trial here myself.

15. Could I please have urgent instructions. [7]

16. I feel I should add that Brookes has very good standing here with Sjahrir and MacKereth and that in my lay opinion he has handled a difficult situation very well.

1 Document 297.

2 Document 291.

3 See Document 297, note 3.

4 See Document 260.

5 That it would be to Indonesia's 'advantage generally and particularly in regard to continued Australian sympathy if [Sjahrir] voluntarily and immediately handed over suspects and available evidence and information' to AFNEI.

6 Van Mook had supposed that the trial would be by a military court set up by AFNEI.

7 On 12 June, the External Affairs Dept replied that it preferred Kirby not to make a special trip to Australia and that he should do nothing definite regarding the trial procedure until Evatt had been consulted. Three days later, in cablegram 55, Kirby was informed of Evatt's view that 'the Indonesian Government should not be encouraged to think that Australia will initiate its case before the United Nations'. Instead, Kirby was to 'direct all his efforts' to ensuring that those found guilty of murdering the Australian servicemen were tried as early as possible.

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