Escape from Justice: The Failed Prosecutions of Baron Takasaki Masamitsu

The trials of suspected Japanese war criminals by Allied military tribunals after the Second World War were intended to be comprehensive: all military personnel suspected of war crimes would be held accountable. ¹ From an early point, however, Japanese military personnel brought before the tribunals complained that some people were more likely to face justice than others. The big fish, they maintained, could get away, while more junior personnel would be left stranded. ² Recent scholarship has established that junior Japanese soldiers overall did not suffer disproportionate punishment in the war crimes trials in the Pacific. ³ Nevertheless, it was certainly possible for well-placed suspects to manipulate the system to their advantage. This article examines a prime example of escape from justice by a suspect who was implicated in several serious crimes against Allied prisoners of war (POWs) in the Pacific and was pursued by the Australian authorities in particular.

On 11 and 12 January 1946, on Morotai Island in the Netherlands Indies, Rear-Admiral Hamanaka Kyoho and Lieutenant Commander Baron Takasaki Masamitsu of the Imperial Japanese Navy were tried by an Australian military tribunal for the murder of two Australian POWs. Japanese military personnel under the command of the two accused had executed the two prisoners on 19 June 1945 on Ambon Island in the Netherlands Indies. Neither Hamanaka nor Takasaki had directly participated in the alleged crime; rather, the Australian prosecutor accused the two officers of ordering the summary executions of the POWs. ⁴ The tribunal found Hamanaka guilty of ordering the executions and sentenced him to death, with a recommendation of mercy on the grounds that he had saved many other lives in the final days of the war by making efforts to halt the fighting in his area of command. Takasaki, by contrast, was acquitted. ⁵ Takasaki was subsequently taken into Dutch custody and tried for crimes committed while he had been the commanding officer on Celebes, also in the Netherlands Indies. Although the Dutch military expected to find Takasaki guilty and that he would receive a heavy punishment, Takasaki was again acquitted and the Dutch authorities repatriated him to Japan. ⁶ Takasaki was seriously implicated in several other war crimes during Australian investigations on Ambon, but he never faced trial before Australian or other Allied authorities again. ⁷

Takasaki’s acquittals and his escape from further prosecution are surprising. The post-war trials by the Australian military and other Allied authorities were intended to investigate all alleged war crimes and try all suspected war criminals. ⁸ Investigations were often hampered and eventually abandoned because of a lack of evidence and the absence of witnesses, or for other practical reasons. ⁹ Prosecutions failed and defendants were acquitted because the evidence or the legal arguments were ambiguous or unconvincing. ¹⁰ These considerations were unlikely to have applied to Takasaki. During his trial and in the Australian trials of other defendants for other crimes, a large body of compelling evidence was raised by both the prosecution and the defence indicating that Takasaki had committed war crimes, including murder and ill-treatment of POWs. Multiple legal avenues were available that would have resulted in a legitimate and likely successful, prosecution of Takasaki. The question thus arises as to why Takasaki was acquitted at his Australian trial and then avoided further prosecution.

Katayama Hideo, a defendant in one of the Australian trials for crimes on Ambon, noted Takasaki’s escape from justice right from the beginning. As we will see below, he was convicted and sentenced to death for a crime that Takasaki may have ordered, but for which Takasaki was not charged. Katayama commented in his own evidence that he ‘could not understand why Cdr Takasaki was not found guilty so far’: ‘As everybody knows he enjoyed a very good time even during the war and after the war he was not guilty and to be worse, he tried, it seemed to me, to pass his responsibility to the lower ranking officer who had the worst time during the war.’ ¹¹ Several scholarly works have also noted Takasaki’s run of good fortune. ¹² Such works have, however, failed to adequately explain why Takasaki was found not guilty of war crimes.

One reason may be that no direct evidence exists to answer the question, principally because the post-war Australian military tribunals were not required to give reasons for their decisions. Voluminous other documents on the war crimes trials exist, however, including trial proceedings and investigation reports. From an examination of those materials, it appears that Takasaki escaped punishment and further prosecution because of a combination of his wealth, his social position, his willingness to cooperate with investigators, and a hiatus in the war crimes trials. If this is true, Takasaki’s escape from justice demonstrates that, despite the goal of comprehensiveness in the post-war trials, factors beyond substantive justice existed and that war crimes suspects could exploit the system to escape conviction.

In October 1945 the Australian government announced that it intended to prosecute all suspected war criminals. ¹³ Australian authorities clearly also intended that none of those who had committed a war crime ought to escape justice merely because of procedural requirements of the court. The War Crimes Act 1945 (Cth) thus made several allowances which differentiated the war crimes proceedings from civilian trial procedure. Both the prosecution and defence could submit hearsay evidence, as well as relying entirely on unsworn affidavits: the military had argued that it would be an injustice if an accused war criminal could escape justice merely because the court could not receive a more desirable form of evidence. ¹⁴ Furthermore, the Act denied the accused the entitlement to any plea in bar, which meant that the court could try an accused on facts which had already resulted in a previous acquittal or conviction. ¹⁵ The departure from civilian trial procedure to ensure that the proper suspects were tried for the proper crime and received the proper verdict and sentence is an example of ‘substantive justice’, which is achieved when a just outcome is reached. Proponents of substantive justice argue that justice is achieved when the right outcome is attained, rather than focusing on whether the procedure itself was just. ¹⁶

The initial goal of prosecuting all suspected war criminals was, however, quickly revealed to be unrealistic. Returning Australian servicemen gave the impression that Japanese war crimes had been widespread and common. Furthermore, the definition of war crimes meant that an act as simple as slapping a prisoner was illegal under international law. ¹⁷ In October 1945, the Australian government predicted that it would take less than a year to complete its trials, 500 of which were to be concluded by 31 July 1946. Five and a half years later, in April 1951, the Australian military had conducted a total of only 296 trials. In December 1946, approximately two-thirds of the trials were complete, though the number of trials held had begun to decline by July 1946. The number of trials diminished further in 1947, due to the significant burden on the military’s budget and legal resources and the logistics of conducting trials in relatively remote locations in the Pacific. ¹⁸ Takasaki’s sole Australian trial occurred very early on; following his extradition to the Dutch tribunal, where he was also acquitted, the constraints on the Australian trial process meant that further prosecutions were unlikely.

Takasaki came from a prominent family. His grandfather had been chief of the Imperial Poetry Bureau in the 1880s, advising Emperor Meiji on poetry, and was also a court councillor in the Privy Council, a body that advised the Emperor on legislation and governmental policy. His great uncle served as the Governor of Tokyo in the 1890s. ¹⁹ Takasaki’s father had died fighting during the Russo–Japanese War (1904–05). ²⁰ After his grandfather’s death in 1912, Masamitsu accordingly inherited his title. He attended Gakushin (the Peers’ School), the school for Japanese aristocrats and the Imperial Naval College. After graduating, he attended St Catharine’s College, Cambridge University. There he studied a Bachelor of Arts in History, as well as taking military subjects, graduating in 1926. ²¹ Before the outbreak of the Second World War, Takasaki was a member of the Tokyo Foreign Golf Club, where he socialized with European diplomats and military officers. His exact movements after the outbreak of the war are unclear. However, he certainly worked with Allied prisoners before he was posted to Ambon: at some time during the war he is known to have visited captured journalists and broadcasters at the notorious Ofuna POW camp in Japan, where high-value prisoners such as airmen, senior officers, and submariners were interrogated. ²²

Takasaki also helped recruit prisoners with broadcasting experience to facilitate the dissemination of Japanese propaganda; he would testify after the war in the investigation of Major Charles Cousens, an Australian officer accused of treason because of his broadcasting activities. ²³ Takasaki’s testimony in the Cousens investigation provides a striking example of his post-war willingness to cooperate with Allied authorities, which may have contributed to his apparent immunity from conviction as a war criminal. His testimony in the Cousens case, however, lacked credibility. He claimed, for instance, that Cousens had had an entire floor of suites at a hotel in Tokyo while he was there to broadcast on behalf of the Japanese authorities, a claim that was contradicted by other POWs who had also broadcast Japanese propaganda. ²⁴ It is likely that Takasaki was attempting to gain favour with Australian authorities by delivering promising evidence in a case of great importance to the Commonwealth of Australia. The timing of Takasaki’s statement on Cousens to Australian authorities appears highly significant in relation to his own trial on Morotai. Takasaki submitted the statement just nine days before the Morotai proceedings. It is possible that his willingness to cooperate with Australian authorities may have influenced the tribunal’s judgment on his culpability for war crimes.

While stationed on Ambon Island, Takasaki had been in command of the Tokkeitai, the Japanese naval military police, whose function included the interrogation of prisoners, counter-insurgency raids, and counter-intelligence. ²⁵ Takasaki was also responsible for arranging the transport of captured Allied airmen to Japan. He continued as commander of the Tokkeitai until May or June 1945. For unknown reasons, on 1 May 1945 superiors sent orders that he was to be relieved of command, meaning Takasaki was technically no longer in command of the Tokkeitai when the alleged war crimes were committed. Nevertheless, he still exercised de facto command during the transition period. ²⁶

As well as serving as commander of the Tokkeitai, Takasaki had also been the Chief of Staff for Rear-Admiral Hamanaka Kyoho, a role he continued in until the end of the war. In the Imperial Japanese Navy, staff officers were largely administrative officers and had no jurisdiction to create or issue orders. Instead, they were responsible for drafting orders of commanding officers and ensuring that they were carried out. ²⁷ Takasaki would continue in this role until the end of the war. In addition, he was responsible for the administration of prisoners held on Ambon at Tan Toey POW Camp. During the war, these POWs were subject to widespread and systematic mistreatment, including severe beatings, starvation, and denial of medical supplies. The ill-treatment at this camp was the subject of the largest trial of war criminals held by the Australian military, which charged 92 Japanese military personnel together. Takasaki was not one of them, despite his senior role in the camp’s administration. ²⁸

In the 1946 trial of Hamanaka and Takasaki, the prosecution’s case was that both officers had ordered the summary execution of the two Australian captives. The prosecution alleged that Hamanaka had originated the order, while Takasaki had passed it on to Lieutenant Yunomura Fumiwo, who carried out the execution. Though neither of the senior officers had directly participated in the crime, the prosecutor argued that Hamanaka and Takasaki were principals to the crime. This argument meant that because the two officers allegedly ordered the execution, they were the principal cause of the guilty act, even though they were not direct participants.

The execution was classed as murder because no trial had taken place beforehand. The murder of the two Australian captives was the only crime on trial in this prosecution. In fact, the Japanese soldiers had executed four other prisoners at the same time. Two of them were alleged members of the Indonesian resistance, while the other two were Dutch POWs. The War Crimes Act 1945 (Cth), which governed the Australian military tribunal, however, only allowed for the prosecution of crimes committed against people who had resided in Australia. ²⁹ Thus, the prosecution and defence rarely mentioned the deaths of the other prisoners during the trial.

One lawyer, Captain F. Lynch, represented Hamanaka and Takasaki. In a post-trial report, the Judge Advocate General (JAG), whose role was to ensure the court had properly conducted the proceedings and that the sentences were valid, heavily criticized the fact that the authorities had allocated one lawyer to the two defendants. The JAG argued that because each defendant blamed the other for the crime and denied prior knowledge of the execution, Captain Lynch could not properly serve in the defence of both officers. ³⁰ Having a divided defence probably contributed to Takasaki’s acquittal: as there was more evidence against Takasaki, Captain Lynch may have expended more effort in his defence than in Hamanaka’s.

The first section of the trial dealt with the prosecution of Hamanaka. Hamanaka relied on his own evidence, as well as evidence given by Lieutenant Yunomura Fumiwo, who had carried out the execution and Warrant Officer Yamaguchi Shiro, who alleged that he had received the order in question from Takasaki before giving it to Yunomura. ³¹ Lieutenant Yunomura had already been found guilty at an earlier tribunal, on 30 December 1945, of the murder of the same Australian prisoners that Australian prosecutors accused Hamanka and Takasaki of murdering. ³² In the case for the defence at his own trial, Yunomura had claimed that he had been verbally ordered by Takasaki to execute the POWs and that a written order had later followed the verbal order. ³³ The defence did not produce the order in court. In the trial of Hamanaka and Takasaki, Warrant Officer Yamaguchi, who said he had processed the written order, claimed that either Hamanaka or Takasaki had signed it. ³⁴ In another trial of Japanese officers for the murder of prisoners, evidence given by a staff officer explained that very high-ranking officers had a personal seal with which they ‘signed’ (that is, stamped) orders. ³⁵ High-ranking officers often left the seal with an adjutant or another staff officer. Though Hamanaka’s defence did not raise the possibility at the trial, there had very likely been an opportunity for Takasaki, as Hamanaka’s Chief of Staff, to pass on his own orders as Hamanaka’s.

The defence evidence raised during the prosecution of Hamanaka appears reliable. The information supplied by the witnesses contains no contradictions and there does not appear to be any evidence of collusion among the witnesses on Hamanaka’s behalf. If the defence argument is accepted, it appears clear that Takasaki, rather than Hamanaka, had ordered the execution of the prisoners.

The prosecution claimed that Hamanaka had ordered the execution of the POWs during a routine briefing with Lieutenant Katagiri Tameyoshi, a Tokkeitai subordinate. ³⁶ At the time of the trial, Katagiri was missing and was therefore not available to give evidence. Hamanaka claimed that Katagiri had informed him that Japanese soldiers had captured two Australian airmen after attacking civilian structures. Katagiri reminded Hamanaka that an official order stated that Japanese officers could execute Allied aircrew who had attacked civilian structures. ³⁷ If the commanding officer tried the Allied aircrew, the order to execute the Allied aircrew would be legal. The defendants did not claim that a trial had taken place in this case and accordingly, under both international law and Japanese military law, the execution constituted murder. ³⁸ Hamanaka claimed he had formally acknowledged the existence of the order allowing the execution of captured airmen but stated that he had not ordered these particular executions. When asked by the court whether his acknowledgement of the order could have been interpreted as an instruction to carry out the executions, Hamanaka strongly denied this possibility. He claimed that the conversation with Lieutenant Katagiri was far too informal to have been interpreted by his subordinate as an order. ³⁹ Hamanaka’s claim that he discussed executions of airmen in general, but did not order these particular executions, appears likely to be true. Katagiri was missing, but both Yamaguchi and Yunomura had already stated that Takasaki had ordered the executions. Hamanaka could easily have relied on the evidence given by Yunomura and Yamaguchi without linking himself to the executions through an account of his conversation with Katagiri. However, he chose to raise the conversation in court. If Hamanaka had ordered the executions, it would not make sense for him to endanger himself by voluntarily discussing the conversation with Katagiri before the court.

Despite denying that he had ordered the executions and was therefore a principal to murder, Hamanaka accepted that as the commanding officer at the time, he was responsible to some extent for the crime that had occurred. He stated that though he had not given an order to execute the prisoners, he had failed to prevent the summary execution by ordering a trial. ⁴⁰ He thus implicitly accepted the legal doctrine of command responsibility. ⁴¹ Command responsibility is a doctrine in international criminal law that holds commanding officers liable for the conduct of their troops. The post-war military tribunals could interpret the doctrine as either a strict liability or as a separate offence of the superior. In the first interpretation the commanding officer is held to have been a party to the crime merely by virtue of his or her position. In the second interpretation, the commanding officer is deemed to have failed in his or her duty to prevent, halt, or punish the commission of war crimes by subordinates. Hamanaka was implicitly arguing that the second interpretation should be applied. However, as reasons for the bench’s decisions were not published, it is impossible to determine conclusively whether the tribunal found Hamanaka guilty under one of the two interpretations, or whether it found he had personally issued the order.

Takasaki, in his defence, completely denied that he had issued the order, or even knew about the executions until after they had occurred. For the most part, Takasaki rejected the evidence given during the prosecution of Hamanaka. He stated that he had relinquished control of the Tokkeitai by the time of the executions, in accordance with the orders sent in May 1945, adding that he was only a staff officer during the relevant time and had never seen the order to execute the prisoners. In response to Yunomura’s claim that Takasaki had directly told him to execute the prisoners, he asserted that Yunomura was lying. This lie was, according to Takasaki, part of a greater conspiracy by a number of junior officers to pin the blame on him because he had exhibited a pro-British stance during the war. ⁴² Takasaki attempted to substantiate his alleged pro-British sentiments by providing a character witness, Captain (later Major) George Charlesworth, a member of the British Commonwealth Occupation Force’s Allied Translator and Interpreter Service (ATIS) and a former employee of the Nippon Phone Company in Yokohama. ⁴³ In a bizarre submission to the court, Charlesworth stated that he knew Takasaki from before the war, when Takasaki had been the only Japanese member of the Tokyo Foreign Golf Club. ⁴⁴ This was all Charlesworth had to say; presumably Takasaki’s membership of the golf club was supposed to be enough to demonstrate his good character and his pro-Western leanings. Takasaki also heavily emphasized his education at Cambridge University and that his father had been educated in the United States. ⁴⁵

Takasaki’s claim that his fellow soldiers knew of his pro-British sentiments during the war is not particularly plausible. It seems unlikely that a senior member of the Japanese naval police would have voiced pro-British sentiments to other officers during the conflict. It also seems unlikely that naval authorities would place an officer who had voiced these opinions in close contact with Allied POWs for much of the war. Takasaki’s claim to have been conspicuously pro-British may instead have constituted an effort to present himself to the tribunal as part of a ‘Westernized’ subset of the Japanese military, much as some other defendants claimed to be Christian. ⁴⁶ By portraying himself as temperamentally like the British, Takasaki implicitly asserted that he did not conform to the racialized stereotype of the brutal Japanese officer.

Takasaki’s acquittal is at odds with the evidence given at the trial. Allied prosecutors did sometimes accept that Japanese officers had been unfairly blamed for war crimes either by their superiors or their subordinates. Usually, however, such cases occurred when the officer in question was dead, or, had escaped capture at the end of the war. ⁴⁷ Takasaki claimed that his subordinates had lied about him. For his subordinates to have made a false accusation against an officer when he was known to be available to give evidence, however, would have been especially brazen and risky. The evidence overwhelmingly points towards Takasaki having ordered the executions. Historian Hank Nelson has suggested that the reason Takasaki was acquitted was that the tribunal simply believed Takasaki instead of Hamanaka. ⁴⁸ His conclusion, however, appears to be based only on a reading of Takasaki’s single Australian trial, without any consideration of Takasaki’s wider dealings with war crimes investigators. As noted above, Takasaki was connected with or implicated in several other crimes committed against POWs on Ambon. An acquittal in the Morotai trial, combined with a failure to prosecute an officer so closely connected to another string of crimes, implies something more than a straightforward acceptance by the tribunal that Takasaki’s evidence was more believable than Hamanaka’s.

Evidence in a second trial that overlapped chronologically with Takasaki’s own trial implicated Takasaki for crimes committed against prisoners on Ambon. From 2 January to 18 January 1946 on Ambon and from 25 February to 15 March 1946 on Morotai, the Australian military charged 92 members of the Japanese military with ill-treating Allied POWs at Tan Toey POW Camp. ⁴⁹ This was the largest number of defendants prosecuted in a single trial in any Pacific theatre military tribunal. ⁵⁰ In the trial, the prosecutor charged enlisted soldiers and civilian auxiliaries with committing direct crimes against prisoners, including torture and beatings. Higher-ranking officers were charged, under the doctrine of command responsibility, for their failure to prevent the abuse of POWs. Among such accused was Captain Shirozu Wadami, the camp commander for the majority of the war. ⁵¹ Responsibility was attributed widely to the defendants during these proceedings, even when evidence was not compelling. The JAG’s summation of the trial noted that several of the accused did not have any evidence brought against them, nor did they have any actual responsibility within the command structure; yet they were still found guilty of beating prisoners and sentenced to terms in prison. The JAG reasoned that the large number of defendants meant that amassing sufficient evidence had been impossible and that the accused were, nevertheless, probably guilty. ⁵² As for Shirozu, the evidence raised at the trial showed that he was merely the de jure commander of the camp and personally had exercised no practical control over it. He had left the running of the camp to his subordinates and inspected the camp only twice over a period of nearly three years. ⁵³ The court nevertheless found that he either knew, or ought to have known, that his subordinates were committing widespread war crimes. Shirozu was found guilty of failing to prevent, halt, or punish the commission of these crimes. He was sentenced to death and executed at Rabaul on 25 September 1947. ⁵⁴

During his post-war interrogation by Allied investigators, Shirozu had indicated that Takasaki had contributed to the administration of the camp. When Shirozu took command of the camp in 1943, he did not inspect it. According to his own statement, he assumed that the Japanese soldiers ran the camp according to international law and that they would continue to run the camp in this fashion without him. Shirozu identified Takasaki as being responsible for the general administration of the camp, as well as the legal affairs of the prisoners, without detailing the extent of his responsibility. However, a note appears in the margins of the interrogation record, likely written by a member of the prosecutor’s team: ‘Takasaki Responsibility!’ ⁵⁵ The writer of the note seemingly suspected that Takasaki had either had some role in allowing the POWs to be abused or had neglected his duty as a general administrator of the camp to prevent further abuse. It seems very unusual that prosecutors would not charge an officer with some degree of criminal liability who was apparently at least partly responsible for the administration of a camp where severe ill-treatment was systematic.

Command responsibility was a malleable doctrine, applied in different ways across the Allied trials of Japanese war crimes suspects. One unusually explicit account of how Allied prosecutors used the principle in order to charge those connected to a war crime appears in the record of an American investigation into a summary execution of POWs. First, according to this explanation, the actual perpetrators would be tried. Then, the chain of prosecutions ‘would go all the way to the top’, unless at some point in the process it was shown that the commission of the crime had been ordered by a single officer somewhere along the chain of command. ⁵⁶ This method was also used in the Australian prosecution of war criminals. ⁵⁷ If prosecutors used the same method of indictment against Takasaki, they could probably have brought Takasaki to trial at least for his connection to the crimes committed at Tan Toey POW camp. It seems highly unlikely that an officer responsible for interrogating POWs and for administering their legal affairs, would have had no knowledge of the crimes that were committed at the camp.

As noted above, several of the defendants at the trial of Shirozu and his subordinates were found guilty of actual commission of crimes, even though the tribunal saw no direct evidence against them. ⁵⁸ On the other hand, the senior surgeon on the island, Lieutenant Commander Nakamura Ryosuke, was found guilty of general medical neglect. He was sentenced to 18 months’ imprisonment, even though the evidence amassed by both the prosecution and the defence showed that he was not responsible for the medical care of the Tan Toey POWs, had not visited the camp, and, furthermore, was not a member of Shirozu’s unit. ⁵⁹ Clearly, the tribunal was not concerned with whether an accused had the actual authority or the necessary knowledge to prevent war crimes. In his report, the JAG argued in favour of overturning Nakamura’s sentence, as he had had neither any responsibility for the POWs’ medical condition nor any substantial knowledge of their condition. ⁶⁰ The Confirming Officer, whose role was to accept, reject, or modify the sentence of the court, ignored the recommendation. Nakamura’s successful prosecution, along with the conviction of others against whom no direct evidence had been brought, raises the question of why prosecutors did not similarly charge Takasaki in the Shirozu trial.

The guilty findings against Nakamura and other defendants, despite the lack of substantial evidence against them, were legally valid. Regulation 9 (ii) of the War Crimes Act 1945 (Cth) stipulated that where there was evidence that a war crime had occurred through the concerted action of a unit, then the tribunal could accept evidence given upon a charge connected to that crime as prima facie evidence of the responsibility of each member of the group for the crime. ⁶¹ The tribunal in the trial of Shirozu and others interpreted the terms ‘unit’ and ‘group’ very broadly. Though Nakamura was not a member of the Shirozu unit, he was still found guilty under this regulation. If Nakamura could be tried and convicted through a broad interpretation of Regulation 9 (ii), it seems feasible that the same regulation could have applied to Takasaki at the Shirozu trial. Though not a direct member of the Shirozu unit, Takasaki’s responsibility for the administration of the camp would likely have allowed the tribunal to apply Regulation 9 (ii), so that the prosecution could also have laid evidence of continual abuse and neglect by Shirozu and his subordinates against Takasaki.

Between 30 June and 4 July 1947, at Rabaul, a year and a half after the trial of Hamanaka and Takasaki, an Australian military tribunal tried Captain Kawasaki Matsuhei for the murder of four Australian airmen who had been shot down over Ambon Island. ⁶² The execution of the airmen had again been carried out without a trial. The prosecution’s case against Kawasaki was that as a staff officer, he had passed on the order to execute the airmen, knowing that no trial had taken place. As a result, he was a principal to murder. ⁶³ The case, however, was not particularly strong. Strangely, the prosecutor continually highlighted the weakness of the case. Instead of emphasizing the evidence against Kawasaki, he spent a significant amount of time linking the crime to Takasaki Masamitsu, who was not on trial in this instance. The tribunal acquitted Kawasaki. ⁶⁴ A second Australian tribunal again tried Kawasaki for passing on a separate order for the summary execution of other POWs, where he was found guilty and sentenced to 10 years imprisonment. ⁶⁵

Kawasaki’s defence against the first crime was an alibi. When the executions were ordered and took place, he was at a conference in the Philippines. Witness testimony corroborated this claim. ⁶⁶ Furthermore, evidence given during the trial by those who had actually executed the airmen suggested that the orders may have come from Takasaki. ⁶⁷ The question arises of how Kawasaki, who could clearly demonstrate he was in the Philippines during the relevant time, was implicated in the crime at all.

From pre-trial interrogations and trial evidence, it appears probable that Takasaki had helped to implicate Kawasaki. Lieutenant Katayama Hideo, who had been in command of the execution party, claimed that Lieutenant Commander Kobayashi Akira, a military lawyer on Ambon, had told him at the time of the execution that Kawasaki was most likely to have issued the order. ⁶⁸ According to Kobayashi’s statement at the trial, Takasaki had told him that Kawasaki had initiated the order and had also passed it on to Katayama. Kobayashi also maintained that due to Kawasaki’s relatively junior position within the command structure, it was highly unlikely he had initiated the order. ⁶⁹

The strongest inference from the evidence is that Takasaki had ordered Katayama to carry out the execution and that at the end of the war, during the investigation, he shifted the blame to Kawasaki. In presenting Kawasaki’s case, the prosecutor argued that there were three possible explanations of how the prisoners came to be executed. The first was that Takasaki had originated the order and had then passed it on to Katayama. The second was that the commander of Japanese forces on Ambon Island, Rear-Admiral Hamanaka Kyoho, had originated the order, which had then passed through the chain of command, including Kawasaki, before finally reaching Katayama. The final possibility was that Kawasaki had originated the order and then passed it to Katayama. ⁷⁰

The arguments led by the prosecutor suggest that he was not fully convinced of the guilt of the defendant, Kawasaki. The prosecutor continuously referred to Kawasaki’s attendance at the conference in the Philippines and often shifted the focus of the trial towards Takasaki’s senior position within the command structure, even though Takasaki was not present in court, either as a defendant or as a witness. The same tendencies are evident in the JAG’s report: the JAG appeared convinced of Kawasaki’s innocence and referred several times to Takasaki’s connection to the execution. ⁷¹

On 24 June 1946, one week before Kawasaki’s trial, Australian authorities had enquired into the Dutch prosecution of Takasaki. If the Dutch military had acquitted Takasaki, or not sentenced him to heavy punishment, it was proposed that he be returned to Australian custody to face further trial. ⁷² However, it turned out that the Dutch had not yet tried Takasaki. He was brought before a Dutch tribunal only in 1948, at Manado in the Netherlands Indies. For approximately two years, between his extradition by Dutch authorities in 1946 and his trial in 1948, Takasaki assisted at other Dutch military tribunals as a court interpreter. He gained a reputation amongst his fellow Japanese soldiers for cooperating with the prosecutor and for placing defendants in disadvantageous positions. ⁷³ In 1948 Takasaki himself was charged, along with three other defendants, with responsibility for crimes committed when he had been the commanding officer of the Tokkeitai on Celebes. The Royal Netherlands Indies Army was confident that Takasaki would be found guilty and heavily punished. ⁷⁴ When the tribunal handed down its verdict on 28 May 1948, however, Takasaki was acquitted. Two of the other accused were sentenced to death and one received a life sentence. ⁷⁵ It seems possible that Takasaki was acquitted partly because of his previous closeness to the Dutch authorities in his role as interpreter and partly for his willingness to help convict his former fellow Japanese servicemen.

In August 1948, the Royal Netherlands Legation informed the Australian Department of External Affairs that Takasaki had been acquitted. ⁷⁶ By this point, the Australian trials of suspected Japanese war criminals had drastically slowed down. The significant drain on military, government, and legal resources made it obvious that prosecuting all suspected war criminals was no longer feasible. ⁷⁷ Furthermore, by this point many witnesses, both Australian and Japanese, to the crimes Takasaki was alleged to have committed were not readily available: Japanese witnesses might have been executed or imprisoned in Japan; Allied prisoners had been repatriated to their home countries. The Australian government requested that the Dutch repatriate Takasaki, who was now free, to Japan. ⁷⁸

In fact, however, reduced availability of witnesses posed no serious challenge to any potential further trial of Takasaki. The slowing down of Australia’s war crimes prosecutions in 1948 meant that many suspected war criminals were never brought to trial. Trials resumed in 1950–51, however, after a hiatus in 1949. At that point, Australian prosecutors gave priority to the most serious crimes and to crimes committed against Australian nationals, rather than against local civilians. ⁷⁹ Under these circumstances, Takasaki would seem like an ideal candidate for prosecution. There existed a reasonable body of evidence against him and the crimes that he was suspected of ordering or allowing had been committed against Australian POWs. As discussed above, the War Crimes Act 1945 (Cth) had extremely relaxed rules of evidence and, furthermore, did not prohibit trying an accused person on facts which had already resulted in a previous acquittal or conviction. ⁸⁰ The permissive rules of evidence and the removal of the bar to double jeopardy meant that there was no procedural hurdle to further prosecution of Takasaki.

As the evidence reviewed above indicates, Australian prosecutors were generally prepared to proceed against Japanese military personnel believed responsible for war crimes even when no conclusive evidence existed against them. Rear-Admiral Hamanaka was found guilty of ordering the summary execution of two captives, even though the evidence presented at trial strongly suggested that he was not aware of the crime until after it had been committed. Australian authorities charged Captain Kawasaki Matsuhei with ordering the summary executions of two POWs, even though evidence conclusively showed that he was in the Philippines during the relevant time. A military tribunal found Lieutenant Commander Nakamura Ryosuke guilty of medical neglect, even though he had no knowledge of the prisoners’ condition, or duty to know of their condition. Several enlisted soldiers were also found guilty of beating POWs on Ambon, even though no evidence was raised to support the accusation. Baron Takasaki Masamitsu was connected to the commission of crimes in all of these cases. Yet he faced an Australian military tribunal only once and was exonerated in that trial on questionable grounds.

There is no direct evidence to explain why Takasaki escaped punishment in his trial or was never prosecuted for other crimes committed on Ambon. It is theoretically possible, as Nelson suggests, that prosecutors simply believed what he said when he denied responsibility for crimes. This explanation is unsatisfying, however, in view of Takasaki’s connection to multiple crimes committed on the island and the willingness of prosecutors to charge other Japanese soldiers with even weaker circumstantial connections to war crimes. It is possible that the oppressive workload undertaken by tribunal staff meant that his case was lost in bureaucracy. The winding down of the trials by the time that Takasaki could be returned to Australian custody may also have been a factor in his escape from further prosecution. It is very likely, however, that other factors played a conclusive role in his escape from justice. Takasaki had established connections with Allied military and diplomatic personnel at the Tokyo Foreign Gulf Club prior to the war. His position as the head of a politically influential family may have been a factor. Takasaki, or his peers, may have been able to use his social and political position to encourage the Allied authorities to limit their pursuit of him. Takasaki also demonstrated his usefulness to Allied authorities by willingly cooperating in the investigation of Major Cousens and in the trials of other accused Japanese war criminals.

Takasaki’s acquittal in his Australian trial, the subsequent failure of the Australian military to prosecute him in 1946 when evidence and personnel were readily available, his acquittal by the Dutch in 1948, and the Australian decision to drop any further investigation or prosecution of him in the same year demonstrate a failure to achieve substantive justice. Tribunals had the necessary tools, in the doctrine of command responsibility and, in Australia’s case, the broad-ranging powers of Regulation 9 (ii) of the War Crimes Act 1945 (Cth), to achieve a just outcome. These tools, however, were applied haphazardly and the impact of the discretion applied by both the tribunal and the prosecutors sometimes also endangered the prospects for substantive justice. The Australian military could probably have successfully prosecuted Takasaki under either command responsibility or Regulation 9 (ii). Indeed, these tools were used against many Japanese suspects who were tried for the same crimes in which he had been implicated, yet Takasaki was never convicted.

Australian authorities were vehement proponents of the post-war trials and prosecuted a significant number of accused Japanese war criminals. Takasaki provides an example, however, in which strong circumstantial evidence of criminal culpability, of a type used often against other suspects, was disregarded. Wealth, social status, and willingness to cooperate with prosecutors, as well as delays in the Dutch trials allowing Takasaki to avoid the two phases of prosecutions by the Australian military, appear to have enabled a prime suspect effectively to exploit the war crimes process and ultimately to escape conviction. ⁸¹