Fred Borch, an American military lawyer, was the first Chief Prosecutor for the Military Commissions at Guantanamo Bay. He is now the Regimental Historian and Archivist for the US Army's Judge Advocate General's Corps. His fluency in Dutch enabled him to research and analyse archival records on the 448 military trials of 1038 Japanese, Korean and Formosan war accused that were held from 1946 to 1949 in what was then the Netherlands East Indies (NEI). The accused were tried in 448 separate trials held at Amboina, Balikpapan, Bandjermasin, Batavia, Hollandia, Macassar, Medan, Morotai, Pontianak, Tanjung Pinang and Kupang.
The publication that has emerged fills a gap in the legal English-language literature, where there is already some knowledge of the NEI forced prostitution case of Prosecutor v Washio Awochi reported in XIII Law Reports of Trials of War Criminals 1 (1946). The book is manageable and written in an easy style, making it accessible to a wider audience. There are 12 chapters: four on the background, four on subject matter clusters (mistreatment of civilians, prisoners of war and civilian internees, mass murder and unlawful executions, forced prostitution, violations of the terms of the Armistice); two on issues of responsibility (criminal group responsibility; command responsibility); one on the trials of collaborators, and a concluding reflection. These are supplemented by a select bibliography, and two appendices (Appendix A listing the trials by location; Appendix B listing the judges, along with a biographical sketch of Judge Levinus Franciscus de Groot). The author includes two statistical tables, a photograph of Judge de Groot, 24 photographs of Japanese accused, and four maps.
The Japanese occupied the NEI from 8 March 1942 to August 1945. During this time, a great many atrocities were committed. Borch hints that the Japanese policy against Europeans, the Dutch in particular, was genocidal ((19–30) although he scrupulously avoids using the term). The post-surrender return of the Dutch to the NEI was complicated. The Japanese had supported the local anti-colonial movement led by Soekarno. This turned into a full-scale liberation struggle, firstly against the British, who together with the roped-in Japanese essentially ‘held the fort’ until the Dutch could return, and then against the Dutch themselves. The NEI trials should therefore be seen in the context of decolonization, and not just in terms of retributive justice.
Borch, in his third chapter, explains how these trials were linked to, yet separate from, the trials of Germans held in the home country, and the broader programme of post-War prosecutions in the Far East that was coordinated by ALFSEA, the Allied Land Forces in Southeast Asia, from Singapore. The NEI trials were, Borch asserts, unique in a number of aspects. This was the only national process with jurisdiction over group criminality (the offences must have been committed as part of the group's day-to-day activities). The NEI was alone in prosecuting ‘forced prostitution’ and ‘systematic terrorism’ as war crimes. Enemy soldiers were, uniquely, prosecuted for violating the terms of the armistice. And, Borch argues, this was the only post-war legal process with a mandatory sentencing framework.
Borch appropriately queries the generic failure of the Allies to take up the many crimes committed against women and girls in the course of Japan's so-called ‘comfort women’ system. The Dutch were an exception for having the grand total of three trials, but despite the fact that many more local women, citizens of the NEI, were similarly victimized, it was only the experience of Caucasian women and girls that was of interest (130–4). However, in other areas, there were prosecutions for crimes against local Indonesians, such as Prosecutor v Tadashige Daigo (mass murder of 1,054 persons in Pontianak, Borneo).
Chapter VII focuses on the three forced prostitution trials, including but going beyond the Washio case that has been internationally reported. He presents the ‘Semarang forced prostitution affair’ involving 11 military and civilian accused tried together, and a separate case against Colonel Shoichi Ikeda. Borch also details the case of the Dutchwoman Franciska Hendrika Eckhart, who was convicted of ‘trafficking in women’ and of ‘promoting lechery’ under the NEI Staatsblad Decree No 46 of 1946.
Of the 1038 accused, 55 were acquitted, 236 were subjected to the death penalty, 28 were sentenced to life imprisonment and 705 received shorter sentences (Table 1, 230). Borch concludes that ‘the Dutch in the NEI had succeeded in creating military tribunals, determining the law and designing a judicial process that provided full and fair trials for war criminals’ (231). Further, despite the existence of anti-Japanese bias on the bench and among witnesses, ‘a close examination of the records in each case discussed in this book does not disclose any evidence that anti-Japanese prejudice directly affected the determination of innocence or guilt’ (231). Borch suggests that several cases are jurisprudentially worthy: on command responsibility the cases of Immamura, Maruyama and Ozakazi, and on group criminal responsibility the cases of Motomura and others, Choo and others, and Tanabe and others) (233).
After the end of the Asia-Pacific war, there were over 2300 war crimes proceedings held in more than 50 locations. Borch's helpful book about an important piece of the puzzle facilitates growing understanding and is a worthy contribution. Even so, this is a sad chronicle that is tainted further by hypocrisy. As the Dutch were busy trying the Japanese for wartime atrocities, they themselves were committing much of the same against Indonesians fighting for independence. And, that was followed by decades of impunity. It was only in 2011, with the landmark judgment in Wisah binti Silan and others v The State of the Netherlands (Judgement) [2011] District Court of The Hague 354119/HA ZA 09-4171, that some degree of accountability started to be achieved.
