36 Department of External Affairs to Evatt

Minute CANBERRA, 18 January 1946

MAJOR JAPANESE WAR CRIMINALS- POSITION OF THE EMPEROR

Hirohito was named as one of the 64 persons appearing on the Australian list of Major Japanese War Criminals drawn up in October 1945. He appears as seventh (in alphabetical order) on the list. This list was presented to the United Nations War Crimes Commission [1] in London on 9th January, 1946, but consideration of it was deferred for a fortnight.

The list of criminals was prepared by the Australian National Office of the War Crimes Commission after consultation with experts in Japanese affairs. The following were the grounds on which Hirohito was included- (1) That International Law should not give immunity to sovereigns or their advisers who abet or connive at breaches of the laws of war by their soldiers and people.

(2) That the breaches committed by the Japanese were so terrible, commencing with the China Incident and continuing until February of last year, and so widespread, that the Emperor and his Ministers must have learned of them, if not from Japanese sources, then from neutral and enemy sources through the press or broadcasts.

(3) That having learned of them they must be taken to have approved of them or connived at them or abetted them, if they did not take steps to prevent them.

(4) That in view of the great authority displayed by the Emperor in bringing about the unconditional surrender of Japan it is clear that, if he had ordered his forces or people to desist from atrocities and other violations of the laws of war, he would have been promptly obeyed.

(5) That it would be a travesty of justice, seriously reflecting on the United Nations, to punish the common Japanese soldier or Korean guard while granting immunity to others perhaps even more guilty than he.

The list was prepared in accordance with recommendations adopted by the United Nations War Crimes Commission on 29th August 1945.

These recommendations proposed that criminals falling within the following categories should be listed:-

I. 'Those Japanese responsible for the plans or policies which resulted in (these) abominable crimes and atrocities ... The case against these major criminals is that they have devised, set in motion and carried out the criminal plans and enterprises which incited or resulted in the aggressions, cruelties and brutalities which have outraged the civilised world.' II. 'That those Japanese holding key positions in the civil, military or economic life of Japan who, perhaps, did not devise or set in motion plans which resulted in these crimes and barbarities, but nevertheless directed the carrying out of such plans within Japan or in the territories of more than one of the United Nations ... This category of criminals includes those individuals and officials, usually in key-positions in the Government, who have willingly planned the details of and put into execution the monstrous schemes of the Japanese leaders. It also includes those brutal and ruthless criminals who, both inside and outside Japan, have been guilty of mass criminality towards the nationals of many of the United Nations. Among such persons were those in charge of certain Prisoner-of-War and civilian internment camps where the people of many nations have been starved, tortured, murdered or otherwise atrociously maltreated.'

1 Established by a meeting of Allied representatives on 20 October 1943 with a small secretariat in London, but, during the war, working mainly through committees and through a Far Eastern and Pacific Sub-Commission in Chungking. National offices established by member nations submitted formal charges against suspected war criminals to the Commission, which then determined whether the accused should be arrested and prosecuted by member governments.

[AA:A1067, UN46/WC/1]