44 Morris

Chapter 2 Sir William Webb and Beyond: Australia and the International Military Tribunal for the Far East

Narrelle Morris

More than seventy years after the Second World War, there are now some solid legal historical studies of Japanese war crimes and the consequent Allied international and national war crimes investigations and prosecutions, and more are emerging every year. Traditionally, however, there has been little focus on the approaches to Japanese war crimes of the ‘smaller’ Allied Powers, including Australia. Indeed, an earlier anniversary book on the International Military Tribunal for the Far East (IMTFE) acknowledged the ‘glaring gap’ in the literature in relation to Australian judge and president, Sir William Flood Webb KBE (1887-1972).1 What little has been written on Webb generally adopts Richard Minear’s views2 of the trial as a starting point and hence presents a negative view of him.3 Indeed, Webb is usually damned with the same faint praise as offered by the eminent R. John Pritchard, who summarized Webb at the IMTFE thus: ‘Sir William Webb, by all accounts, was coarse, ill-tempered, and highly opinionated. He was hard-working and endeavoured to be conscientious, however’.4 Yet, as James Sedgwick has pointed out, ‘[t]he over­ bearing caricature of Webb is so entrenched in the historiography that it is rarely questioned, let alone explained’.5 Moreover, the focus on Webb, even as small as it is, has left other aspects of the Australian approach to the IMTFE

1 ‘Editors’ Preface’ in Y. Tanaka, T. McCormack and G. Simpson, (eds.), Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited (Leiden: Martinus Nijhoff, 2011), p. xxix. 2 R. Minear, Victors’ Justice: The Tokyo War Crimes Trial (Princeton, N.J.: Princeton University Press, 1971). 3 See T. Hewton, ‘“Webb’s Justice”: The Role of William Flood Webb in the Tokyo Trial, 1946-1948’, unpublished Honours thesis, University of Adelaide (1976); and D. Smith, ‘Commentary on “Sir William Webb – Hobbesian Jurist”’ in M. White and A. Rahemtula (eds.), Queensland Judges on the High Court (Brisbane: Supreme Court of Queensland Library, 2003), pp. 151-70. 4 R. John Pritchard, ‘An Overview of the Historical Importance of the Tokyo War Trial’, in C. Hosoya, N. Andō, Y. Ōnuma and R. Minear (eds.), The Tokyo War Crimes Trial: An International Symposium (New York: Kodansha International Ltd, 1986), p. 92. 5 J. Sedgwick, ‘A People’s Court: Emotion, Participant Experiences, and the Shaping of Postwar Justice at the International Military Tribunal for the Far East, 1946-48, Diplomacy & Statecraft, vol. 22. no. 3, (2011), 491.

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004361058_004 Sir William Webb and Beyond 45 understudied, including the role of the Australian associate prosecutor, Justice (later Sir) Alan James Mansfield (1902-80).6 Webb was one of the more controversial judicial appointees to the IMTFE, as it was suggested at the time, and frequently since, that he should have refused the appointment or disqualified himself from sitting on the basis that his investigation of Japanese war crimes during the war meant that he had been too closely involved with the issues to be determined at trial and could not be impartial. As the sole judicial ‘voice’ of the trial – possessing the only microphone on the bench – he was also a controversial president, for many reasons too complex to go into in this brief chapter. This chapter examines, firstly, the selection of Webb as the Australian judge and the issues of apprehended bias that arose. Secondly, it gives a short overview of Webb’s approaches to and views of the trial, including his relations with judicial colleagues and counsel. Thirdly, it gives an overview of the prosecution approach of Mansfield. Finally, this chapter deals briefly with Webb’s separate judgment. As Yuma Totani has contended, the Australian participants in the IMTFE ‘profoundly shaped the course of the trial and left their deep imprint on its outcome’.7 Interestingly, correspondence reveals that Webb knew that, due to his wartime work, he probably ought not to sit in judgment on any trial of Japanese war criminals, whether national or international trials. That Webb accepted his nomination suggests that he believed that, as an experienced judicial officer, he was qualified to sit and could appropriately distance himself so as to remain impartial. Yet, if he had acted more conservatively and refused the appointment or recused himself, the IMTFE might have been quite a different tribunal – a hypothetical that underscores how a biographical approach to the IMTFE offers an innovative way of examining it. Whether the trial would have been less criticized overall, however, is unlikely.

Sir William Webb’s Appointment

After studying law, Webb was called to the Bar in 1913 and thereafter rose rapidly through the Queensland public service to the office of crown solicitor. His judicial career began with an appointment to the Queensland Court of

6 See only F. Cullity, ‘Australia’s Involvement in the International Military Tribunal for the Far East: The Case of Sir William Webb and Sir Alan Mansfield’, Australian Bar Review, vol. 41 (2016), 236-45. 7 Y. Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (Cambridge, Mass.: Harvard University Asia Centre, 2008), p. 42.