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]