240 Brookes to Dunk

Cablegram 76 BATAVIA, 11 May 1946,10.20 a.m.

MOST IMMEDIATE TOP SECRET AND PERSONAL

Further my telegram 73. [1] Your telegram 34. [2]

1. You will appreciate that the idea that the General Officer Commanding expressed in paragraph 4 of my telegram 73 was tentative only and given prior to consultation with his advisers.

2. Since then I have seen the General Officer Commanding and his principal political adviser, MacKereth, and both agree that the Japanese responsible for the murders should be handed over to the Allied authorities for trial as war criminals.

3. I saw Sjahrir last night in company with the Senior A.F.N.E.I.

Liaison Officer and he has promised to issue instructions that the Japanese concerned shall be delivered to A.F.N.E.I.

4. After preliminary interrogations, A.F.N.E.I. propose to fly the Japanese to Singapore for expert interrogation and trial. The only legal authority for trying offences against members of the central administration is in a laborious Dutch court in Batavia.

5. As some Indonesians are also implicated in the crime, and as their extradition from the interior would place Sjahrir, who has shown the utmost goodwill, in an impossible political situation, and most likely involve A.F.N.E.I. in large scale military operations, it was not considered desirable to press Sjahrir to hand over the Indonesians. Further the handing over of the Indonesians, who in any case appear to have played a minor part, would almost certainly result in both the Indonesians and Japanese being shot before interrogation. There would be no possible grounds for trying to send the Indonesians, being Dutch subjects, to Singapore as well as the Japanese. Sjahrir has given me his assurance that the Indonesians will be tried and if found guilty the fullest penalty will be exacted. He has invited an A.F.N.E.I.

representative to attend who will be able to conduct an interrogation and unofficially attend the trial and execution.

6. The only other alternative is that the Indonesian authorities will try, and doubtless execute, both Japanese and Indonesians in the presence of a British Officer who can only attend unofficially, as to attend officially would involve the British authorities in de jure recognition of an Indonesian court. Sjahrir has stated that he was willing to try the Japanese also if desired.

7. A third Japanese whom Sjahrir believes to be implicated in the crime is still at large. Sjahrir has given instructions for his capture.

8. Documents belonging to MacDonald were handed to me yesterday and I have passed them to Lieutenant-Colonel Smith. It is not known whether the documents are complete. It is certain however, that MacDonald's diary has been, tampered with and this is being investigated most thoroughly.

9. The court of enquiry has been completed and I will advise of findings when promulgated.

10. In the circumstances details of agreement with the Japanese asked for by you in paragraph 2 of your telegram 34 appear irrelevant.

11. The whole of this signal should be read in the light of the peculiar and extremely tense relations between Dutch and Indonesians at present. Bearing this in mind the course outlined in paragraphs 1 to 5 above after full consultation with MacKereth and G.O.C. appears to be the only practical one. As it is, the Dutch might well be expected to protest against the sending of the Japanese to Singapore and the trial of Indonesians by Indonesians.

Already they are evincing considerable interest in the matter.

12. I have informed Mr. MacKereth of the contents of this signal and he is signalling to the Foreign Office in much the same terms.

He will also express to them his strong convictions that action as disclosed in paragraphs 1 to 5 above is the only practical course which would be compatible with a thorough investigation and one which did not depend on findings of an Indonesian court however well disposed. Sjahrir stated that he was willing for Indonesian witnesses to be flown to Singapore, other than those implicated in the murder.

13. Smith is signalling Headquarters A.M.F. and asking them, (1) whether they consider the Japanese can be charged as war criminals.

(2) if so, then is it desired that the Australian war crimes court at Singapore should try them.

The legal points at issue are I am informed, whether the murders can be regarded as a war crime as distinct from a post war crime and whether the power of a war crimes court could cover the case.

A copy of Army's reply will be given to me. Smith is proceeding to Singapore tomorrow. 14. It was through my intervention that Japanese and Indonesians responsible have not already been tried and executed by the Indonesian authorities.

15. Please send instructions urgently. [3]

1 Dispatched 6 May, it reported that two Japanese and three Indonesians had been apprehended by the Indonesian authorities in connection with the murder of three Australian service personnel (see Document 196); Mansergh considered that, in accordance with a previous agreement, 'the Japanese would be tried by the Japanese', and that the Indonesian authorities should try the Indonesians.

2 Dispatched 8 May in reply to cablegram 73, it conveyed the External Affairs Dept's surprise at the suggestion that the Japanese should be tried by a Japanese tribunal.

3 The External Affairs Dept replied on 13 May that Brookes should not give consent to the proposed procedures until after Evatt (in London) had been consulted.

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