311 Australian Government to Addison

Cablegram 243 CANBERRA, 14 June 1946

IMMEDIATE

I. As you are no doubt aware, on 17th April 1946 three Australian officers attached to Australian War Crimes Section of S.E.A.C.

were murdered in Java. [1] Commonwealth Government through General Mansergh made strong protest to Sjahrir. Indonesians subsequently arrested two Japanese and three Indonesians in connection with the crime, but we were later advised that the two Japanese had 'committed suicide'. [2] On 13th May, SACSEA was requested [3] to attach to his Command judge R. C. Kirby of N.S.W. District Court, as Commonwealth Government felt it was desirable that an Australian judge should thoroughly investigate the circumstances surrounding the commission of the crime and report back to the Australian Government. SACSEA was also advised that Commonwealth Government thought that the procedures appropriate to the trial of the persons accused of the murders might require careful consideration and discussion with Judge Kirby before any decision was reached.

2. On 15th May, Australian Commissioner, Singapore, advised that SACSEA agreed with proposal regarding Kirby but requested matter should be taken up direct with appropriate British Military authorities in Batavia. Australian Political Representative Batavia was thereupon requested to arrange for attachment of Kirby to A.F.N.E.I. and to ask for the good offices of A.F.N.E.I. in ensuring that the accused should not be tried until Judge Kirby had discussed developments and possible procedures with A.F.N.E.I.

and, if necessary, with SACSEA.

3. Judge Kirby arrived in Singapore on 29th May and proceeded to Batavia where he had discussions with A.F.N.E.I., Van Mook and Sjahrir. Before leaving Australia it was Kirby's preliminary view that desirable procedure would be to ensure that accused were handed over to A.F.N.E.I. by Indonesians for trial by an A.F.N.E.I. military court consisting of British Officers.

Discussions in Batavia have confirmed judge Kirby in this view, in which we concur. For adoption of this procedure, however, two conditions must be satisfied, viz.- (a) consent by Sjahrir to hand over accused for trial by a non- Indonesian Court, and (b) Dutch concurrence in trial by military Court constituted as above, rather than by a Dutch Civil Affairs Court.

As regards (a), there appears to be some possibility that Sjahrir may be induced to hand over accused, provided they are not to be tried by a Dutch Civil Affairs Court or by a Military Court containing Dutch officers. As regards (b), Kirby advises that there appears to be an agreement between United Kingdom and Netherlands that Military Courts for trial of nonmilitary personnel can not be set up in Java, although under some special arrangement Netherlands and United Kingdom apparently agreed that Supreme Commander should have power to set up such Military Courts in Sourabaya. [4]

4. Trial by Indonesian or Dutch Courts of persons accused of murder of Australians would not in existing circumstances be acceptable to Australian opinion. It is desired therefore that every possible step should be taken to secure trial by Military Court composed of British Officers, and Commonwealth Government would greatly appreciate action by United Kingdom Government to secure Dutch assent to this course. In addition to Sourabaya precedent, it might be pointed out to the Dutch that failure to agree would undoubtedly cause Indonesians to refuse to hand over accused. This would lead either to trial by Indonesians themselves, or no trial at all-both of which alternatives would be unacceptable to Australia. In view of Dutch requests for retention of United Kingdom military forces in Java, it is felt that approach along above lines to Netherlands by United Kingdom would be successful.

5. Since matters involved are regarded as urgent and important, early advice would be appreciated. In meantime, Judge Kirby is being asked to withhold any formal request regarding trial procedure. [5]

1 Document 242.

2 See Document 260, note 3.

3 Document 242.

4 See Document 304, note 3.

5 The Dominions Office replied on 13 August that under paragraph 6 of the Civil Affairs Agreement of 24 August 1945 between the United Kingdom and the Netherlands, civilians in the Netherlands East Indies alleged to have committed offences against persons or property or security of Allied forces could be tried before a military court. Therefore, SACSEA was being instructed to set up a British Military Court (in consultation with Kirby) when the accused were handed over to the British military authorities for trial.

[AA:A1838/2, 401/3/10/2, iii]