This excellent book addresses a void in the academic literature: an authoritative well-written documentation of post-World War II war crimes trials conducted by an Allied state. Much more than a mere recitation of cases (although there is that, too), this slim volume is a window to an earlier time and an earlier law of war.

“Military tribunal” is the unifying term for all military proceedings of a judicial nature. Courts-martial, employed in all states’ military legal systems, are a form of military tribunal. Military commissions are another type. The author closely examines a related form of military tribunal, Holland's 448 “temporary courts-martial” that tried 1,038 Japanese, Koreans, and Formosans in the Netherlands East Indies (NEI) immediately after World War II, between March 1946 and December 1949. This is the first English language account of those trials.

Fred Borch is the ideal writer for the subject. He is a retired U.S. Army judge advocate colonel, presently the regimental historian and archivist for Army Judge Advocate General's Corps. He holds three law degrees, a Master's in history, has written several military-related books, and has prosecuted many courts-martial. Apropos of the book here reviewed, he was the first chief prosecutor of the ongoing Guantánamo military commissions. Additionally, he spent part of his childhood in the Netherlands and is fluent in Dutch, the language in which the records he examines are written. This background has produced a significant and informative book that is accessible to laymen, as well as academic readers.

The book is illustrated with four full-color maps that are helpful in understanding the locations of charged offenses, internment camps, and trial locations throughout the NEI archipelago. Twenty-five photos of accused individuals further add to the appreciation of the proceedings.

Courts-martial, as such, first appeared in the 1532 “Carolina,” the penal code of Emperor Charles V. In 1621, Sweden's Gustavus Adolphus created regimental courts-martial, the first clearly military application. Eventually, England's 1765 Articles of War, including “Regimental Courts-martial,” and “General Courts-martial,” were adopted by the state of Massachusetts in its 1775 Articles of War, the first U.S. military law code.Footnote ¹ Today, courts-martial remain an internationally standard forum for the punishment of military-related criminality.

The Netherland's post-World War II temporary courts-martial, like all military commissions of that day, were intended, and viewed as, field expedients to try enemy combatants and civilians accused of war crimes. They were without fixed rules of evidence or procedure. In keeping with their expeditionary nature, the rules employed were loose versions of civilian rules of procedure and evidence. Those “loose versions” rarely benefitted the accused.Footnote ²

The legal bases for temporary courts-martial were laid down in four Decrees signed in mid-1946.Footnote ³ The Decrees employed “novel provisions introducing … numerous exceptions to the [NEI] Penal Code.”Footnote ⁴ The war crimes charged were based on thirty-three familiar violations of the laws and customs of war drawn up by the post-World War I Commission on Responsibilities, as expanded by the U.N. War Crimes Commission in 1945, plus five war crimes added by the Dutch to address offenses allegedly committed repeatedly and on a large scale by Japanese forces.

The four opening chapters of the book examine the history of the Dutch in the East Indies, how Japan's “Asia for Asians” philosophy and the code of Bushido influenced Japanese conduct in the NEI, the organization of “temporary courts-martial,” and how evidence was gathered and cases selected for prosecution. The subsequent eight chapters, averaging twenty pages in length, summarize and discuss forty-one cases. These eight chapters are grouped by subject matter—mistreatment of prisoners of war, mass murder, forced prostitution, and command responsibility, for example. Readers may initially view these chapters as simply three or four abridged case reports bundled by offense. The author's case selection is more sophisticated than that, however. Each case within the chapter groupings illustrates a legal or evidentiary element distinguishing it from the others, indicating the legal approach applied to different offenses. Subject matter groupings also allow readers to focus on areas of their own legal interests and to pass over topics of lesser concern, if desired. Judge advocates and other lawyers will likely find the four stage-setting chapters particularly engaging and more legally significant. These chapters are particularly well-done by the author.

At the outset of World War II, the Japanese focused on the NEI because it “was an economic powerhouse … [producing] almost 40 percent of world rubber exports. … The NEI's oil would not only satisfy Japan's domestic consumption needs but also fuel its war machine” (pp. 11–12). After a lightly-defended invasion and initiation of a harsh occupation, the Japanese interned 100,000 civilians, all Europeans and some Eurasians—including 20,000 British civilians and 27,000 French civilians.

In addition to more than 42,000 prisoners of war, the Japanese interned civilian men, women, and children simply on the basis of ethnicity and race. Indicating the extreme harshness of that internment, 13,120 civilians, one out of every six, died in captivity (p. 27).

Several temporary court-martial charges smacked of ex post facto law-making, which was specifically prohibited by the NEI's Penal Code. The Dutch were unfazed by such legalities, however. They simply suspended the Penal Code's ex post facto prohibition (p. 41). If the Dutch feared a temporary court-martial charge did not constitute a violation of the laws and customs of war they took a similarly bold approach. “NEI authorities simply used the powers that they had to make any war-related offense prosecutable at a temporary court-martial simply by enacting colonial legislation through decree” (id.). Such decrees were few, however.

Interestingly, Borch notes that, although the offense was ultimately never brought to trial, temporary courts-martial were authorized to charge conspiracy as a stand-alone offense, “a radical departure from Dutch civil law … because ‘conspiracy’ is an Anglo-American criminal concept that was not recognized in the civil code framework utilized by European and most other countries … in the 20th century” (p. 42). Seventy years after the Dutch experience, conspiracy was a significant jurisdictional stumbling block to America's Guantánamo military commissions until, in late 2017, it was finally found to be an offense triable by U.S. law of war military commissions.Footnote ⁵

Making short work of another contentious legal issue that was vexing Nuremberg IMT prosecutors, temporary courts-martial brought organizational prosecutions to trial.

Describing the temporary courts-martial, Borch writes that they were constituted of a president and two members, all three military officers. Defendants had the right to counsel, although no right to legally qualified counsel, a not-so-subtle distinction that, in practice, proved to be a non-issue. Active duty and retired military officers could serve as defense counsel, as could any other person given permission by the court-martial to do so.

Because many witnesses, particularly former prisoners of war (POWs), were repatriated to their home states as soon as possible, most prosecution evidence consisted of written sworn statements. Consequently, hearsay evidence was admissible. This was common practice in the post-war United States and other states’ military commissions, as well.

Defenses often raised were self-defense, lack of mental responsibility, and, although declared an “inoperative” defense by the Dutch, obedience to orders. As in most military commissions of that day, duress was a defense to any charge other than the murder of a POW or other innocent.

There was no appeal of a temporary courts-martial sentence, although all sentences had to be approved by a higher military authority. A brake on otherwise unaccountable judicial findings was that the military tribunals were required to “state the rationale for their decisions … ‘together with a statement on the circumstances which … give rise to a severer or lighter punishment’” (p. 52). Death sentences, awarded in 24.4 percent of the trials, were carried out by firing squad.

The author frankly acknowledges that a significant problem was that few temporary court-martial judges were without some degree of anti-Japanese bias and prejudice. One temporary court-martial president had been held by the Japanese as a prisoner of war for three-and-a-half years (p. 64). More neutral judges could not be detailed from Holland because homeland judges had their hands full trying Nazi war crime cases that had originated there. To an extent, neutrality issues were addressed by a requirement that judges provide written “reasoned verdicts” for the cases they decided. No other state's military commissions imposed a similar requirement. “Perhaps the best evidence [of fairness] … is that not every Japanese person who was tried was found guilty” (p. 65). Of the 1,038 accused, 978 were convicted, 55 acquitted. Colonel Borch acknowledges that this is a comparatively small acquittal rate but posits that it nevertheless indicates that “NEI judges were not in lock-step with the prosecutor…” (id.). By comparison, however, U.S. Far East military commissions tried 1,453 accused and acquitted 15.4 percent. United Kingdom military commissions tried 978, acquitting 11.9 percent (p. 232). NEI judges may not have been in lockstep with the prosecutor, but they were by no means holding hands with the defense either.

Borch's well-written text illuminates numerous law of armed conflict issues that remain relevant today. His chapter on trials for the mistreatment of civilians and prisoners of war, for example, will bring to mind similar cases from the International Criminal Tribunal for the former Yugoslavia. The chapter on trials of collaborators covers a seldom examined topic. The chapters on both mass murder and command responsibility are particularly well-done, causing one to recall that both offenses remain issues in virtually all modern conflicts—particularly non-international armed conflicts.

The book's most legally compelling chapter may be that examining organizational responsibility for war crimes. One of the four Decrees establishing temporary courts-martial jurisdiction provided for individual criminal responsibility based solely on membership in any group found by a temporary court-martial to be a criminal group:

Temporary courts-martial met the difficult issue of organizational guilt head-on and found no reason to slow down. American prosecutors at Nuremberg's International Military Tribunal (IMT), which convened three-and-a-half months prior to the NEI tribunals, faced the same criminal organization issues of proof and individual defenses, although involving many times the potential accused as the Dutch, and eventually came to a different legal resolution.

The Charter of the IMT was published in August 1945. During its formulation, the chief U.S. prosecutor, Supreme Court Justice H. Robert Jackson, strongly argued for inclusion of a provision allowing organizational trials that would have mirrored the approach of the NEI courts-martial. Indeed, charging Nazi organizations’ criminality was part of American planning from the beginning.Footnote ⁷ The lead American IMT judge, Francis Biddle, firmly disagreed with that position, however—and disagreed with the chief prosecutor: “Jackson takes a rigid position that knowledge has nothing to do with criminality,” he wrote, “and that it is enough to show criminal acts by some to hold all—including charwomen apparently.”Footnote ⁸ Telford Taylor, the chief prosecutor-in-waiting, agreed with Biddle on practical grounds: “[J]udicial proceedings, even giving full effect to … summary process, could not possibly deal with such numbers [of accuseds] without hundreds of courts and years of hearings.”Footnote ⁹ Whitney Harris, a Nuremberg prosecutor, later wrote, “This concept of the criminality of organizations was troublesome to the French and Soviet negotiators … and even the British entertained doubt as to the wisdom of naming organizations as defendants before the Tribunal. But Justice Jackson persevered . . . .”Footnote ¹⁰

The Charter's prosecutorial logjam was resolved by General Lucius Clay, at that time the deputy minister governor of Germany. In November 1945, Clay established a Denazification Policy Review Board, tasked with handling all of the “organization cases” through German tribunals. “Fortunately for me,” Telford Taylor wrote, “the Control Council [the military occupation governing body of the Allied Occupation Zones in Germany] approved the Clay-Fahy … denazification program so that I never had to confront the issue.”Footnote ¹¹ Regarding Justice Jackson's derailed plan for U.S. prosecutions, General Clay noted, “We couldn't have tried [all of] them in a hundred thousand years.”Footnote ¹²

However, with a small NEI political bureaucracy, a sufficient number of military lay judges, and infinitely fewer potential accused, temporary courts-martial could afford to cut straight to their legal plan: first, declare organizations criminal, then convict individual members of their charges on the basis of their organizational memberships.

The author describes temporary court-martial practice in this regard (pp.154–56). In each case, the judges initially heard evidence upon which to decide if the charged war crime was committed as part of the activities of the suspect organization, most often the Kempeitai or the Tokkeitai. If the panel found those activities were representative of the organization's operations as a whole, the organization was found to be a criminal organization. At that point the accused, as a member of the criminal group, was effectively already guilty. A second proceeding then heard mitigating evidence of the accused's part in the offense charged, and any defense he might raise. A prosecution showing of the accused's intent was not required. Presuming the defense presented did not rise to an acquittal, a sentencing determination followed. This two-stage judicial process mirrored that mandated by the Nuremberg IMT Charter.

Acquittal was possible if the accused could prove that he had not participated in the war crime being collectively prosecuted. The burden of proof of non-participation was on the accused. Fully one-third of the 1,038 Japanese who were convicted by NEI temporary courts-martial were members of either the Kempeitai or Tokkeitai—routinely found to be criminal organizations. Such full-throated finding of individual guilt through organizational membership was not seen at Nuremberg, ultimately. Although the IMT retained the possibility of organizational guilt in theory, in fact the prosecution practice was neutered by the Tribunal's judges’ requirement of a showing of “voluntariness in joining and knowledge of the criminal purposes of the organization as definitional elements of the criminal membership.”Footnote ¹³ Temporary courts-martial were not so burdened.

Borch's Chapter 8 surveys three criminal group cases involving fifty-three accused. His case accounts are, of course, much fuller than the brief résumés described here. The author's first case involved sixteen Tokkeitai officers and men charged with unlawful mass arrests in Macassar, the Celebes, and “repeated, regular and lengthy torture.”

One doubts that the accused were all that surprised when the Tokkeitai was found to be a criminal group, or that nine of their number were found guilty and sentenced to death.

As the author points out, while there was no requirement that the tribunals prove an accused personally guilty of a charged war crime, many temporary courts-martial nevertheless took pains to do so, suggesting a certain unease regarding the summary procedure involved.

One organizational guilt case described is notable in that the entire Japanese 25th Army, more than one hundred thousand men, was declared a criminal organization! In 1944, the 25th Army was tasked with building a Bridge Over the River Kwai-type railroad across Sumatra. Some 5,000 POWs and 10,000 native workers were forced laborers. Nearly 13,000 of them died in the effort that, although finally successful, proved fruitless when the war ended before the railroad could be utilized. Recognizing the futility of attempting to try an entire army, four senior Japanese commanders were tried, found guilty, and executed.

Forced prostitution remains a particularly reprehensible Japanese war crime, with accounts relating to World War II “comfort women” still frequent media fare. Borch's chapter on the subject offers illuminating background material, as well as summaries of four trials involving thirteen defendants. His case résumés are painful to read.

The post-World War I Commission on Responsibility identified forced prostitution as a war crime but the NEI temporary courts-martial were the first instance of the offense actually being prosecuted by a military tribunal.

Japan's twelve civilian internment camps were crowded, rations were barely adequate, and medical care limited. “[B]eatings of both men and women were routine, for the slightest infraction (or perceived infraction) of camp rules and regulations, and delivered with exceptional brutality and cruelty” (p. 25). The Japanese, and brothel operators collaborating with them, mined the internment camps for women, including Caucasian women and girls, who were coerced into prostitution in brothels maintained for Japanese soldiers.

One case, Washio, relates that internees who were to be prostitutes were “recruited” by a Dutch woman, Lies Beerhorst, who was responsible for the operation of a brothel. Two girls coerced to work in Washio's bar and brothel were twelve and thirteen years old. “Beerhorst threatened to turn the young girl over to the Kempeitai if she did not ‘receive at least two Japanese each evening’” (p. 136). The Kempeitai’s cruelty toward prisoners was widely known.

It is true that a few women volunteered, preferring the horrors awaiting beyond the internment camp to the horrors in the camps. Author Borch relates sordid case details as discretely as possible but the appalling circumstances of the twice-victimized women and girls are all too apparent. Washio was found guilty of the war crime of forced prostitution and sentenced to ten years imprisonment. What became of Beerhorst is unrecorded.

The prosecution of eleven Japanese combatants, including a colonel, three majors, two captains, and a sergeant major, is also detailed. In this case, women from a civilian internment camp on Java were coerced into prostitution through repeated beatings. One group of ten women was further warned that, if they resisted, forty internees would be executed in retaliation. Another group of six was given two choices: “Death or work as a prostitute in one of the four Japanese brothels in Semarang. Five of the girls chose death, but were immediately informed that if they did not change their minds their parents would pay for their resistance” (p. 140). Some victimized women found escape in madness. Others committed suicide. In the case of the accused eleven soldiers, one accused was sentenced to death. Eight received terms of imprisonment.

Through clear writing and a fine eye for the selection and depiction of pertinent cases, Borch's book has much to offer academic and legal readers. No book is perfect, of course. The author, in my opinion, is too quick to find virtuous explanations for questionable temporary court-martial practices. One may argue, for example, with his assertion that subordinates who carried out unlawful orders involving mass murders merited leniency because they were only following orders (p. 108). Or that unsworn written statements, the sole evidence leading to multiple death sentences, were acceptable because they underscored the gravity of the charged offenses (p. 141). But these are exceptions to the author's sound legal judgments in a book documenting many arguable legal situations.

Any western condemnation of temporary courts-martial might first consider American courts-martial of German POWs after World War II. The Mauthausen court-martial, for instance, in which sixty-one Nazis were tried in a single trial resulting in forty-nine executions.Footnote ¹⁴ Or the Dachau court-martial that resulted in thirty-six of forty defendants being hanged.Footnote ¹⁵ As guilty as those accused may have been, beatings and other mistreatment that produced much prosecution evidence should not be overlooked.

Borch's text highlights the need filled by 1949 Geneva Convention III Article 102, requiring that, today, prisoners of war be tried by the same courts and same procedure as members of the armed forces of the Detaining Power. This is a powerful book that those interested in the academic literature of World War II, the law of war, or the frailty of man, should read.