TORTURE: ASIAN AND GLOBAL PERSPECTIVES | FEB – APR 2014 | VOLUME 03 NUMBER 01 & 02
by SUZANNAH LINTON
The roots of the prosecution of atrocities arising out of World War II can be seen in a 7 October 1942 declaration by US President Roosevelt that “I now declare it to be the intention of this Government that the successful close of the war shall include provision for the surrender to the United Nations of war criminals”.
On 17 December 1942, the Governments of Belgium, Czechoslovakia, Greece, Luxemberg, the Netherlands, Norway, Poland, the USA, the UK, the USSR, Yugoslavia, and the French National Committee, issued a declaration condemning German atrocities against the Jews and re-affirming their “solemn resolution to ensure that those responsible for these crimes shall not escape retribution, and to press on with the necessary practical measures to this end”. Mr. Anthony Eden, the Secretary of State for Foreign Affairs, explained that “I would certainly say it is the intention that all persons who can properly be held responsible for these crimes, whether they are the ringleaders or the actual perpetrators of the outrages, should be treated alike, and brought to book.”
This move towards criminal justice was not uncontested, but was further elaborated on in the 1943 Moscow Declaration, where the United Kingdom, the USA and the USSR declared their policy, that those German officers and men who had been responsible for or had taken a consenting part in these atrocities “will be sent back to the countries in which their abominable deeds were dome in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be created therein”. This was “without prejudice to the case of the major criminals, whose offenses have no particular geographical localization and who will be punished by the joint decision of the Governments of the Allies”. This extended to the Far East, to cover the Japanese.
In October 1943, a United Nations War Crimes Commission was set up in London to collect lists of criminals, record available supporting proof, and make recommendations as to the tribunals to try and the procedure for trying such criminals. In May 1944, a Sub-Commission for the Far East was set up in Chungking, China, to gather information about Japanese crimes in Asia. It was composed of representatives from Australia, Belgium, China, Czechoslovakia, France, India, Luxembourg, the Netherlands, Poland, the United Kingdom and the United States. The Chinese delegate, Dr. Wang Chung Hui, Secretary-General of the Supreme National Defense Council of China, was elected its first chairman.
As the policy solidified, the Allies settled upon the idea of a military tribunal for the leaders, and for the remaining suspects to be brought before occupation courts or sent back for trial under the provisions of the Moscow Declaration, to the countries where they committed the crimes. By 21 November 1944, the British War Cabinet had determined that “war crimes committed against British subjects or in British territory should be dealt with by military courts set up to try them in Germany (or wherever else was appropriate)”. The British attitude towards the essential elements of a criminal trial is revealed in the following comments to the USA, concerning a possible trial of Adolf Hitler: “He, of course, must have in such a trial all the rights properly conceded to an accused person. He must be defended if he wishes, by counsel, and he must call any relevant evidence. According to British ideas, at any rate, his defence could not be forcibly shut down or limited because it involves a great expenditure of time. There is nothing upon which British opinion is more sensitive in the realm of criminal procedure than the suspicion that an accused person-whatever the depths of his crime-has been denied his full defence.”
The prosecution of the laws and usages of war, or war crimes, was, by the time of the Second World War, already well-established in British military law. Field General Courts Martial may be convened during wartime to deal with crimes committed against the laws or usages of war. The laws and usages of war were the subject of a lengthy explanatory chapter in the Manual of Military Law 1929, which drew from international law, in particular but not exclusively from, the Regulations annexed to Hague Convention IV of 1907. The direct source of law for all British trials in the aftermath of World War II, including the Hong Kong trials, was the Royal Warrant of 18 June 1945, including the annexed Regulations for the Trials of War Criminals. British military courts had jurisdiction over all suspected war criminals within the command of the particular convening officer, irrespective of where the crimes had been committed. In essence, the procedure for Field General Courts Martial, regulated in the Army Act 1926 and its Rules of Procedure 1926 would apply, to the extent amended by the Regulations annexed to the Royal Warrant and other secondary legislation adopted such as the two Instructions issued by General Headquarters, Allied Land Forces South East Asia (ALFSEA). The basic procedure for general courts martial was explained in the Manual of Military Law 1929 – it was a simplified procedure, with relaxed rules of evidence, compared to what applied in the civilian system.
In relation to the war in Asia, the United Kingdom declared war on Japan on 8 December 1941, the day after it attacked Pearl Harbour and certain Western territories in Asia such as Malaya. After a short conflict lasting some 17 days, Hong Kong fell to Japan on 25 December 1941. Following the dropping of atomic bombs on Hiroshima and Nagasaki, the Emperor of Japan capitulated on 14 August 1945. An 11 man Japanese delegation signed a formal Instrument of Surrender on 2 September 1945 on board the USS Missouri in Tokyo Bay. In surrendering, the Japanese agreed to the Potsdam Declaration, which included the statement of the Allies that: “We do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners” (Para. 10). The International Military Tribunal in Tokyo was established on 19 January 1946 by General McArthur, as Supreme Commander of the Allied forces in the Far East. Further to the reassertion of British control over Hong Kong with the arrival of Rear Admiral Harcourt, an interim military administration was established on 1 September 1945, giving the Commander in Chief of the liberating forces full judicial, legislative and executive powers (the Japanese only formally surrendered on 16 September 1945).
In July 1946, of the 10,000 Japanese captured in Hong Kong after the surrender, 239 were held as suspected war criminals. Some were repatriated as there was insufficient evidence, and others were sent to Hong Kong from across Asia (for example, towards the end of 1946, 58 Japanese and Formosans were sent to stand trial in relation to atrocities against Prisoners-of-War in Formosa, and 10
Japanese had been sent from Japan to Hong Kong in relation to crimes committed in Shanghai against British nationals). During 1947, 55 Japanese were located in China and brought to Hong Kong, and 92 detained Japanese were repatriated.
The Commander of Land Forces Hong Kong drew from the Royal Warrant to establish a total of 4 British war crimes courts in Hong Kong, which dealt with cases from across Hong Kong, Kowloon and the New Territories, and also from Formosa (Taiwan), China (Waichow and Shanghai), Japan and on the High Seas. These courts operated under ALFSEA supervision, although the final say in each case lay with the Commander of Land Forces Hong Kong. In him lay the power to confirm, or not to confirm, any convictions and sentences imposed.
The British War Crimes Courts in Hong Kong exercised jurisdiction over war crimes, meaning “a violation of the laws and usages of war committed during any war in which His Majesty has been or may be engaged at any time since the 2nd September, 1939” (Article 1). The grounds for exercise of personal jurisdiction appear to have been because the crimes were committed against British or Commonwealth citizens (passive personality jurisdiction) or the suspects were captured within the Hong Kong command (universal jurisdiction). The subject matter spanned war crimes committed during the fall of Hong Kong, during the occupation and in the period after the capitulation following the nuclear bombings of Hiroshima and Nagasaki, but before the formal surrender. They included killings of hors de combat, abuses in prisoner-of-war camps, abuse and murder of civilians during the military occupation, forced labour and offences on the High Seas.
The first trial, concerning the Silver Mine Bay Massacre on Lantau Island, began on 28 March 1946. The last judgement, in the matter of detainee abuses in Shanghai, was promulgated on 18 February 1949 having been passed on 20 December 1948. There were a total of 46 British war crimes trials in Hong Kong, of 123 individuals. Of the 46 judgements issued, 44 were confirmed against 108 individuals, with 14 acquittals. 2 judgements were not confirmed: there was one retrial following non-confirmation of the judgement (Ito Juniichi), and one judgement was not confirmed but transferred to the Supreme Court (Innouye Kanao).
S. Linton, ‘Hong Kong’s War Crimes Trials’, at Suzannah Linton & HKU Libraries, Hong Kong’s War Crimes Trials Collection Website at hkwctc.lib.hku.hk; for more comprehensive research and analysis, see the book that has emerged from this project: Suzannah Linton (ed), HONG KONG’S WAR CRIMES TRIALS (Oxford University Press, 2013).
Suzannah Linton is Chair of International Law, Bangor Law School, Bangor University, where she started and developed their International Law programmes. She previously led the programme at the University of Hong Kong’s School of Law. Her work has been profiled by the International Committee of the Red Cross, Radio Television Hong Kong, Professor Philip Zimbardo, and by the Crimes of War project. She has been interviewed by the media in several countries, for example about the Western Sahara, East Timor, justice in Bangladesh and war crimes trials in Hong Kong. In 2011, the University of Bangor Law School Journal carried an in-depth profile further to her appointment as Chair Professor of International Law. She is a trustee of the Church Hostel, the Anglican Chaplaincy to Bangor University.