Dunne, B and Durham, H, The prosecution of crimes against civilians, Australia's War Crimes Trials 1945-51, Brill Nijhoff, G Fitzpatrick, T McCormack, N Morris (ed), Netherlands, pp. 196-235. ISBN 978-900429204-8 (2016) [Research Book Chapter]
Copyright 2016 Koninklijke Brill NV
In the current discourse surrounding the prosecution of those accused of war crimes, the international community and international enforcement institutions regularly focus upon civilian victims. While today there is often concern raised in the media about the treatment of prisoners of war, significant outrage is more frequently expressed in response to images and stories of crimes against ‘innocent’ civilians. Before the mid-1940s, neither the international legal framework nor the record of war crimes prosecutions focussed attention so heavily on civilians. The cases tried under the War Crimes Act 1945 (Cth) (‘War Crimes Act’) included 59 trials which featured civilians as the victims and demonstrated a shift towards the broader understanding of the way armed conflict affects society - in particular the local population. The War Crimes Act, and the Board of Inquiry Instrument which informed it, were clear in articulating the crimes specifically involving civilians, demonstrating a commitment to try crimes committed against the general population.
The evolution in international humanitarian law to encompass a more expansive and detailed focus on the protection of civilians, starting in 1949 with the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (‘Geneva Convention IV’), and culminating in the two Additional Protocols, has also been mirrored in the growth of international criminal law. This is evident in the cases prosecuted by the modern international criminal tribunals: the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). Each of these criminal tribunals, along with other hybrid or internationalised courts, have had a predominant focus on prosecuting crimes committed against civilians. The ICTY has prosecuted 57 cases involving crimes against civilians, the ICTR 51, and all the matters currently before the ICC, from arrest warrants to completed trials, have concerned civilian victims. The shift in attention from combatants to civilians, both in the focus of prosecutions and in the popular understanding of ‘war crimes’, has been profound and fundamental.
In the context of international humanitarian law as it stood in 1945, the existence and extent of Australian Military Court trials featuring crimes against civilians is remarkable. Prior to the creation of Geneva Convention IV in 1949, the legal protections for civilians during times of war were scant. Even where protections were enumerated, such as in the Hague Convention (IV) Respecting the Laws and Customs of War on Land (‘Hague Convention (IV) 1907’), they were limited and vague. The Australian War Crimes Trials must be seen in the context of the range of international and national trials that were held following the Second World War, many of which prosecuted some cases for crimes against civilians. However, the predominant focus of international humanitarian law at that time was on combatants and the vast majority of the Australian trials were for crimes against prisoners of war.
The lack of a comprehensive legal basis for protections for civilians, and the absence of any prior trials for such crimes, makes the 59 Australian war crimes trials which prosecuted crimes against civilians all the more significant. The depth of investigative work evident across the cases, and the dedication in pursuing these prosecutions, demonstrates an intuitive understanding of the seriousness of crimes against civilians, in particular against the local population. This can be seen through the sheer variety of crimes, and victims, across the trials for crimes against civilians. The crimes ranged from massacres, murder, rape, torture, and cannibalism to ill-treatment and property confiscation. The civilian victims were not predominately Australians or European missionaries, but rather ‘natives’ and ethnic Chinese.
It is apparent from the trial records that the Courts struggled at times to identify legal norms in relation to crimes against civilians; despite these and other criticisms of the trials processes, these trials provide an important historical grounding for the prosecution of such crimes in international law. The trials demonstrate how those seeking to apply international law grappled with the recognition of some crimes as war crimes, such as rape and other forms of sexual violence, and the ill-treatment of civilians. The cases provide valuable insights into how crimes against civilians were conceptualised within the existing framework of international humanitarian law, which enhances the way in which they are now understood and adds to existing precedents for practitioners.
This chapter will address a range of aspects of the trials involving crimes against civilians and provide an analysis with a thematic focus rather than individual examination of the legal proceedings. As there is only a small amount of existing scholarship which covers the prosecution of crimes against civilians in the trials, and there are a large number of trials, the range of issues to examine is very open. To avoid overlap, this chapter will not address, in any detail, those cases and other aspects of the trials which are dealt with elsewhere in this book. This includes Wewak MW5, which deals with allegations of cannibalism of an unidentified native; those cases involving the death penalty except where the specifics of the crimes prosecuted are relevant; and defences raised except where these are relevant.
This chapter will examine, in Part 2, how the trials which prosecuted crimes against civilians give broader insights into the conditions of war. The cases reveal some of the experience of the conflict for the affected civilians and for the Japanese troops. The evidence given by victims, witnesses and the accused show the day-to-day experience of occupation: the interaction between occupiers and the inhabitants; the shared experiences of starvation and deprivation; and the fear and paranoia which developed from isolation and bombardment.
Part 3 will discuss the range of victims. The broad jurisdiction for the trials, under sections 7 and 12 of the War Crimes Act, meant in practice that crimes against a wide range of civilians came within the ambit of the Courts. The majority of victims were natives of the various islands of New Guinea and its surrounding territories, with Chinese locals and internees as the second largest group. Relatively few cases involved Australian or European civilian victims. The majority of the victims were men, but there are a few notable cases where the victims were women, including two cases involving rape decades before rape was widely recognised as a war crime by the ICTR and ICTY. A striking feature of the trials is the apparent lack of hierarchy among victims in the sense that the prosecution indicates time and time again that it treated seriously the evidence and claims of local civilians about their treatment at the hands of the Japanese.
Part 4 will address some of the legal themes that emerge from the trials, particularly the efforts within the trials to give practical effect to the vague existing protections for civilians. The first example is the use of the Martens Clause in situations that appear not to have a fully formed normative framework to rely upon. The Martens Clause was created at the Hague Peace Conference in 1899, and reads:
The inhabitants and the belligerents remain under the protection and the rules of the principles of the laws of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience.
By allowing decision makers to consider ‘the laws of humanity and the dictates of public conscience’ in their interpretation of the law, this clause has been used by a variety of jurists to allow for flexibility when the existing legal framework proved too vague. As will be examined in this chapter, in various ways throughout the trials featuring civilians, the prosecutors, defending officers and judges-advocate invoked the Martens Clause, through referencing the sentiments of humanity, to carry a legal point.
The second example is the recurring difficulty that the Courts had over how to identify the lowest threshold for a war crime. This can be seen in the overlap of the ill-treatment, beating and assault cases. The Courts often used a combination of domestic, military and international law to find a basis for the crimes. There is a real sense from the cases that while there was an intuitive understanding of the inherent wrongness of some behaviours, identifying such treatment as a war crime proved very difficult, particularly in the context of a conflict when both victim and perpetrator were suffering. Third, one of the most interesting legal debates that comes out of the trials for crimes against civilians concerns what amounted to a fair trial under international law. The treatment of this issue reveals early concerns over the right to a fair trial, and efforts to express the key components of a fair trial in an international context.
A product of the specific social and anthropological context of their time and place, the war crimes trials featuring prosecutions for crimes against civilians in the post war context provide valuable insight. Set against a limited legal framework regulating the treatment of civilians and a lack of clear precedent, the 59 trials demonstrate a commitment to holding individuals accountable for their treatment of civilians. Today this is taken for granted, but historically it was not the case. Embedded in these cases relating to murder, torture, rape and ill treatment of civilians is also the broader narrative of the harsh impact of armed conflict upon communities, including the ‘aggressors’, and the daily struggles experienced by all.
|Item Type:||Research Book Chapter|
|Keywords:||Australian war crimes trials, crimes against civilians|
|Research Division:||Law and Legal Studies|
|Research Group:||International and comparative law|
|Research Field:||International criminal law|
|Objective Division:||Law, Politics and Community Services|
|Objective Group:||Justice and the law|
|Objective Field:||Justice and the law not elsewhere classified|
|UTAS Author:||Dunne, B (Miss Bridget Dunne)|
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