1. After conferring with Mansfield, Minister desires Bailey to
appear before War Crimes Commission when First Australian List of
Major Japanese War Criminals is considered. [1] He should stress
the following points:
(i) Question for Commission now is not whether Hirohito is guilty
but whether there are grounds for establishing prima facie case of
guilt with view to further examination of evidence. See preamble
to list paragraph 3. [2]
(ii) Under the Japanese constitution war could not be made without
the sanction of the Emperor whose control over the Japanese people
and militarists was demonstrated by his role when the surrender
was effected.
(iii) The Emperor issued rescripts on the declaration of war and
subsequently.
(iv) The Emperor could have abdicated if he disagreed with the
action of the militarists in preparing for, declaring or waging
war.
(v) Atrocities by Japanese armies (as revealed for example in the
Webb report [3]) were so widespread and persistent that it may be
presumed they could not have been withheld from the Emperor in
some form.
(vi) Justice Jackson's statement during the current Nuremburg
trials determining that under the Paris Peace Pact [4] to which
Japan was a party [the] head of a State who launches aggressive
war is personally guilty as a War Criminal.
If the Commission is not yet satisfied to place Hirohito on its
list of war criminals, Bailey should try to have the matter
deferred rather than rejected. [5]
1 See Document 36.
2 A paragraph stating that the evidence presented against the
Japanese was not elaborated in detail since the individuals
concerned were for the most pan widely known for their activities
which justified listing and that fully documented charges would be
prepared with the aid of documents not available to the Australian
National Office of the Wu Crimes Commission.
3 See Volume VIII, Document 239.
4 Under the Kellog Pact of 1928 (or the Pact of Paris), more
correctly the International Treaty for the Renunciation of War,
some 65 states, including Japan, signed an undertaking to renounce
war 'as an instrument of national policy'.
5 The matter was briefly deferred and it was established
informally that strong opposition could be expected to listing the
Emperor. In response to a U.K. suggestion that the Australian list
be circulated simply as a Commission document among member
governments, Bailey insisted that the Australian Govt 'would wish
every instrumentality to be used in this case and that it attached
great importance to endorsement by the Commission of lists
emanating from the Australian national office'- On 13 February the
Commission rejected Bailey's argument that it should issue a list
of key Japanese war criminals based on the Australian list. A U.S.
motion referring the Australian list to the Far Eastern Commission
was adopted, but following a subsequent attempt by the U.S.
representative to overturn this decision, the list was dispatched
to the International Prosecution Section and the Allied Council in
Tokyo, and referred to the F.E.C. simply for information The
External Affairs Dept responded on 12 March that the proposal to
submit the list to the Allied Council for Japan was satisfactory
and that in view of Australia's representation on the Council it
seemed unnecessary to press for submission of the list to the
F.E.C.
