Re Motosuke

• Jurisdiction: Holanda
• Docket Number: Case No. 220
• Date: 28 Enero 1948
• Court: Obsolete Court (Dutch East Indies)

Netherlands East Indies, Temporary Court Martial at Amboina.

Case No. 220

In re Motosuke.

Individuals — Position in International Law — Rights of Individuals as Independent of the Law of the State.

Belligerent Forces — Membership of — Status Of Civilian Inhabitants of occupied Territory who Voluntarily Join the Armed Forces of the Occupying Belligerent.

War Crimes — Punishment of — Plea of Superior Orders.

War Crimes — Nature of — Responsibility of Occupying Belligerent for Offences Committed against Members of Own Armed Forces — Whether such Offences Constitute War Crimes.

Warfare on Land — Belligerent Occupation — Summary Execution of Civilian Inhabitants of Occupied Territory for Hostile Acts Committed against the Occupying Forces — Duty to Hold Proper Trial.

Belligerent Occupation — Treatment of Civilian Inhabitants — Summary Execution of Civilian Inhabitants for Hostile Acts Committed against the Occupying Forces — Duty of Occupying Belligerent to Hold Proper Trial — War Crimes — Nature of — Responsibility of Occupying Belligerent for Offences Committed against Members of Own Armed Forces — Whether such Offences can Constitute War Crimes — Status of Civilian Inhabitants of Occupied Territory who Voluntarily Enlist in the Armed Forces of Occupying Belligerent — Plea of Superior Orders.

The Facts.—The accused Motosuke, an officer in the Japanese army, was attached to the Hosikikan (Japanese Intelligence Service) on the island of Ceram, Netherlands East Indies. He was charged with responsibility for the unlawful execution, between August and November 1944, of four Indonesian natives. It was alleged that in August 1944 the accused ordered the execution by shooting of a Dutch subject by the name of Barends who, during the occupation of Ceram by Japanese armed forces, had joined the Gunkes, a corps of volunteer combatants composed mainly of Indonesian natives serving with the Japanese army. As a member of the Japanese army Barends had been found guilty of having fired at a Japanese soldier as a result of which the accused had ordered the former to be summarily executed. Barends was executed by a firing squad commanded by the accused.

It was alleged also that, in September 1944, the accused ordered the arrest of three Indonesian natives. One of the natives was charged with stealing a Japanese army rifle, another with setting ambushes in the path of retreating Japanese forces, and the third with stealing from and shooting at Japanese soldiers. In October...