Cablegram 81 CANBERRA, 22 January 1946
SECRET MOST IMMEDIATE
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.
_
[AA:A1067, UN46/WC/1]