TORTURE: ASIAN AND GLOBAL PERSPECTIVES | AUG – OCT 2014
VOLUME 03 NUMBER 04 & 05
Dr Suzannah Linton works extensively on rule of law and international justice issues, particularly in Asia. She has, inter alia, been a UN prosecutor for Serious Crimes in East Timor and worked at the International Criminal Tribunal for the former Yugoslavia, in Cambodia, Indonesia, Bosnia-Herzegovina, Croatia and elsewhere. She has supported the Asian Human Rights Commission since she was Associate Professor of Law at the University of Hong Kong, where she directed their LLM programme for several years. In her time in Hong Kong, she uncovered war crimes trials held in the territory from 1946-1948 and brought them to global prominence through a database at the University of Hong Kong, and academic publications. From 2011-2014, Professor Linton was Chair of International Law at Bangor Law School, Bangor University, where she established the Bangor Centre for International Law and started their International Law programmes. She is currently at the Max Planck Institute for Comparative Public and International Law in Heidelberg, Germany.
We recently interviewed her:
Natalie Yeng ( NY): How do you see the significance of application of International Law to protect and promote human rights globally?
Suzannah Linton ( SL) : Let me start my answer by putting myself in the position of a Yazidi, Turkoman, Iraqi Shia or Iraqi Christian fleeing IS in Northern Iraq. I would say International Law is a load of nonsense. International Law did not prevent the rise of IS, it did not prevent IS from sweeping in from Syria where they had for many months been perfecting their monstrous ways, and inflicting barbarous brutality on the civilians of Northern Iraq (and captured Iraqi soldiers). IS and the ruinous catastrophes of Iraq and Syria are testaments to the failure of International Law across the board, not just in relation to the promotion and protection of human rights. Can anyone blame the Yazidi, Turkoman or Iraqi Christian for thinking this way?
As an International Lawyer and a humanitarian, I would like to reflect further on this.
1. The reason why there is such outrage and horror around the world about the dreadful situation in Northern Iraq is that we – all of us as human beings – have certain standards and expectations about how human beings should behave towards each other. What IS are, what they are doing, what they stand for and aim to do, are all utterly contrary not just to moral standards and values across cultures and religions, but also concrete legal standards. Those concrete legal standards are laid down in domestic laws, and also in International Law. The actions of IS and her members are not just prohibited in law, they are also punishable in law. Under International Law, the most relevant rules in relation to IS are in the areas of human rights law, the laws of armed conflict and international criminal law.
2. If the killing, maiming, torturing, raping, displacement etc are not just immoral but wrong in law, why has this happened? If we have laws – whether national or international – how did this happen? Well, laws are broken by individuals around the world every minute of the day. Sometimes people take calculated risks – they may think nothing will happen to them, they may think the benefits justify the risk, they may not know that what they have done is wrong, they may know but do not care about the consequences, or they may actively disagree with the law and choose to disobey it.
3. In the case of Northern Iraq, it is not the fault of the law – whether it is domestic or international – that certain individuals have chosen to ignore it. If we look for fault or blame here, there seem to be many culprits. Fault would of course first lie with the individual IS member who murders, maims, tortures etc (perhaps he/she has no respect for the humanity of others, and feels free to kill, maim and rape), but it may go beyond that. We can think about the State where these things happened (perhaps Iraq has allowed a condition of lawlessness or impunity to exist, fuelling such behaviour or perhaps it was derelict in its duty to protect its citizens), the State of nationality of individual IS members (perhaps they failed to ensure an education that taught tolerance and compassion and respect for other human beings, perhaps they knew the extremist views of the person and preferred the person to go abroad rather than remain in the country), the international community (perhaps other states just stood by and did not speak out, and did not act when they should have done so), perhaps it was the people who manipulated the minds of others, who used propaganda to poison susceptible young people.
4. These matters certainly concern International Law, but the critical point that I am trying to make here is that it is not necessarily the law that is at fault when things go wrong. In this case, it is not necessary International Law’s fault that it was not able to protect the Yazidis, Turkomen, Iraqi Shia and Iraqi Christians from IS.
5. These dreadful things should not have happened, but they did. What does International Law have to offer now that things have gone wrong? Right-thinking people around the world are horrified at what has happened and leaders are under pressure to ‘do something’ about the human suffering in Northern Iraq. International Law comes in here too. International Law provides a basis for evaluating what has gone on, and from that flows a basis for evaluating what can – and cannot – be done about that. Very late, far too late, in the day, some Yazidi, Turkomen, Iraqi Shia and Iraqi Christians were rescued from IS, with international assistance. What has International Law to do with that? Foreign assistance was directly requested by Iraq, on whose territory major violations of International Law were happening. Armed force has been used by the USA on Iraqi territory at Iraq’s request, to protect human lives. Put another way, the internationalised military operations that are now taking place in Northern Iraq are because of a situation where major violations of International Law have occurred, and the response is one that itself is regulated by International Law. A critical source of law here is the United Nations Charter. There are other ways to see the role of International Law in the protection of the human person. Let me give some examples. International Law requires that the displaced must be cared for, they must have food, water, shelter and medical care. Their return home, if possible, should be facilitated. International Law says that the fighting must be in accordance with the rules governing combat operations. International Law says that captured IS combatants cannot be murdered but must be cared for, provided with medical care if necessary, treated humanely. If the individual IS member has committed crimes, he/she can (must) be held to account. It is up to States to ensure all of this is done.
6. We can also look at what happens next when thinking of institutions. International Law does not operate in a vacuum, it operates as the lubricant of international society: it is directed at States and individuals, and it also needs States and individual for its application or enforcement. International Law lays down responsibilities – for example, the responsibilities of Iraq as the territorial State where these things are happening, the responsibilities of USA as a state engaging in an armed conflict on Iraqi territory. International Law regulates what the international community can and cannot do about the stronghold of IS in Syria. It regulates the issue of whether the USA can just attack IS in Syria, without an invitation from Syria to do so or an authorisation from the UN Security Council. International Law also regulates the responsibilities of the UN and her many agencies and associated institutions – the UNHCR, WHO, UNOHCHR, UNDP, etc – and what they can and cannot do in this matter.
So, based on the above illustration, it is quite clear that the application of International Law is highly significant in the protection and promotion of human rights globally. International Law needs States, and sometimes international institutions and individuals, to respect it, apply it and enforce it. This, rather than the content of the law, is often where the problem with application lies. The real challenge is in actually using the law to make a difference.
NY: Could you explain how international affffects not just countries but individuals in day-to-day life?
SL: I like to refer my new students, who usually start off understandably puzzled by International Law, to what Lord Bingham wrote in the foreword to the book Using International Law in Domestic Courts: ‘Times have changed. To an extent almost unimaginable even thirty years ago, national courts in this and other countries are called upon to consider and resolve issues turning on the correct understanding and application of International Law, not on an occasional basis, now and then, but routinely, and often in cases of great importance.’
International Law is everywhere and it affects individuals in many ways that people are unaware of. Think of that exotic foreign fruit that you bought in the supermarket. How did it get there from so far away? How is it is that countries are able to trade with each other? This is about International Trade Law, which finds its roots in the ancient trading practices of nation states.
Think of a trip to another country. How is international air travel possible? How is it that aeroplanes can fly in the air over other countries? Who ensures that the aeroplane is fit to fly? How is it that aeroplanes can land in other countries? What is the legal status of a civilian aeroplane – what happens if someone commits a crime on an aeroplane? How do visitors enter other countries? What is the significance of a passport, what is ‘nationality’? Is a foreigner protected in another country? This of is all about International Law, and not just Aviation Law.
Think of receiving a letter sent from abroad, rare these days! The placing of a stamp on a letter and its posting to arrive in another country involves international agreements, centred around the 1874 establishment of the Universal Postal Union. Expand that to telecommunications, the internet – these benefits that we take for granted are rooted in international agreements between states, which form the basis of International Law (note that much work is now being done on drawing up international regulation of the activities of multinational corporations).
In the UK, students cannot be subjected to corporal punishment anymore. Why? This is the direct result of the UK’s compliance with a decision of the European Court of Human Rights. At this point in time, a new university academic year in the UK is about to commence. Students are exercising their right to education, which is protected by International Law. They and their teachers will benefit from International Law’s protection of their right to freedom of expression, but will be expected to exercise that with respect for the rights of others. The students are entitled to be treated without discrimination on grounds of race, sexual orientation, gender, religion, politics etc. Of course, in the UK, these rights are protected by domestic law, but this is a requirement of the UK’s international commitments for example under the European Convention on Human Rights and the International Covenant on Civil and Political Rights.
NY: In developing countries, due to various factors there are inhumane treatments despite international treaties. How do you think such situations could be improved?
SL: First of all, inhumane treatment happens all over the world. Sadly, very sadly. It does not just take place in developing countries. The world over, people have heard of the abuses that took place in Guantanamo Bay and Abu Ghraib Prison. I would like to refer your readers to the statistics of the European Court of Human Rights – the huge burden of that court should quell any belief that human rights violations only occur in developing countries. Importantly, 174 of the violations found by the Court in 2013 concerned either torture or inhumane treatment. So, Europe is still not a ‘torture-free zone’. I would also suggest to read the European Court’s decision in Husayn Abu Zubaydah v Poland, which reveals how ‘developed’ and ‘human rights friendly’ states assisted the USA in its illegal renditions and torture operations after 9/11. It is also from the USA that we have not just had torture and inhumane treatment, but have heard highly sophisticated and pernicious justifications of such conduct, at the highest levels.
‘… despite international treaties’, the question asks. There are international treaties that prohibit torture and other forms of cruel, inhumane and degrading treatment or punishment. They are both regional and universal. But, a state is only going to be bound by a treaty if it is a ‘party’ to the treaty – this means it has taken certain legal steps to make itself legally bound by the treaty. A treaty does not, in itself, impose any binding legal obligations on a state that is not party to it. There can be other sources of law, but I’ll only deal with the treaty issue. Many states deliberately remain outside of certain treaty systems because they do not agree with certain aspects and do not wish to be bound in such a situation. This is a more honest approach than states who opportunistically sign up to every human rights treaty going because donor funding requires it, rather than because they agree with the values that infuse the treaty and are prepared to make that vision a reality back home. Other states may have some doubts that do not go to the core of the treaty, and if the treaty permits it, they enter reservations that amend the extent of their legal obligation. So, how one deals with a state that is not behaving consistently with standards set out in a treaty depends on the State’s actual relationship with that treaty.
Let us assume we are dealing with a particular developing country that is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CATCIDTP’), but abuse in detention is still going on. All states are obliged, as a matter of International Law, to comply with their treaty obligations – this is a fundamental principle that we lawyers call pacta sunt servanda. Being a developing country is no excuse. To breach binding International Law renders the State liable in International Law to other states party to the agreement. It is also failing to protect and ensure the rights of victims. However it is not very easy to seek a remedy internationally. Many states that are party to international treaties do not allow actions to be brought against them before an international body, whether at the International Court of Justice (states) or before treaty monitoring bodies (individuals). This is because they are concerned about their sovereignty, but by doing this, they cut off an avenue of remedy when International Law is broken. Even so, the mere fact of international treaty participation definitely gives the international community added legitimacy in pressuring the State about the particular situation of inhumane treatment, so there is external political pressure that can be brought upon the State (‘shaming’). Domestically too, local remedies can be sought – the extent to which International Law can be used directly in the legal system depends on how that system relates to International Law. There are, in theory, civil and criminal remedies that can be sought in the domestic courts. At the international level, the remedies are just civil unless it involves war crimes and other international crimes of that severity that are dealt with by an international judicial body as a matter of international criminal law (note that at the International Criminal Court, there is scope for reparations for victims).
It is important to remember that accountability is just one of the tools that we use for dealing with inhumane treatment. And, it is a blunt instrument, for it is a reaction to a situation that has gone wrong; it does not get to the root causes of why it happened and it does not address those root causes to prevent repetition. The process of individual accountability punishes the person convicted, and assumes that others will be deterred by this. This is often wishful thinking, and much effort has gone on taking a more holistic view when thinking about inhumane treatment. For example, abuse by the Police in detention in our developing country could be a systemic problem. It can be simply through poor levels of basic education that leave officers with a lack of understanding about core concepts of equality, human dignity and fundamental rights. It may be because of a corporate culture that promotes the use of confessions, believes that the ends justify the means, and is fixated on achieving quotas. It may be because of lack of training and awareness within the force about the role of the Police and how to treat detainees. It may be because of entrenched impunity because the system condones such behaviour, even rewards it, and the officers know they can get away with it. It may be because of a wider political situation, where there is immense pressure on the Police to deliver results at any cost. If there are such underlying causes, unless the State takes its international obligations seriously and starts to develop strategies and policies for implementation, the mere fact that our developing country is a party to the CATCIDTP is likely to have no impact on the Police.
There is extensive international assistance that is offered to strengthen the capacity of developing countries in meeting human rights, from individual countries on a bilateral basis to the Office of the High Commissioner for Human Rights to the European Union to NGOs. Developing countries are often inundated with ‘training’ and ‘capacity building’ programmes. I am not alone in noting that that this is a job industry, and there seems to be little impact where there is a deeply entrenched systemic refusal to recognise the human rights principles that lie behind rules such as the prohibition against torture. To expect a lowly Police officer to change his behaviour and stand against an entrenched system is unrealistic, we need to work more effectively on systemic change. And, I should like to add that since the revelations about what the USA has been doing in Guantanamo Bay and at Abu Ghraib Prison, training in this area has become more challenging.
Systemic problems of abuse in detention will require a range of approaches, and accountability is just one of them. One of the approaches that is producing results is preventative prison visits – rather than being reactive, this is about stopping abuse from happening. This was pioneered by the European Committee for the Prevention of Torture, and is now used by the UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (‘SPT’) around the world. The SPT can conduct visits to States Parties, and may visit any place where persons may be deprived of their liberty. It also has an advisory function, this involves assisting and advising States Parties on establishing National Preventive Mechanisms as required by the relevant treaty, which is the Optional Protocol to the CATCIDTP. The SPT also works more broadly on torture prevention, with relevant UN organs and mechanisms such as the Special Rapporteur on Torture and the Committee against Torture as well as with international, regional, and national institutions or organizations. Rigorous supervision of places of detention is an important method that is used to prevent – requiring detailed record keeping about the detention, ensuring prompt access to lawyers and family member contact, regular medical examination, close judicial supervision of detention and access to independent monitoring such as by the ICRC, the national mechanisms required by the Optional Protocol to the CATCIDTP or specialised NGOs. Of course, the CATDPR also requires criminalisation of such abuse (eg. specifically prohibiting and punishing torture) and the imposition of duties on superiors in relation to effective investigation and prosecution. The international community has developed a significant amount of ‘best practice’ such as the highly influential 1955 Standard Minimum Rules for the Treatment of Prisoners, which is now undergoing a process of updating.
Our particular developing country may not have the infrastructure to meet all its human rights obligations, but that is no excuse for a state that has taken on legal obligations in this regard – it will keep being in violation of its international obligations for so long as people are tortured or subjected to cruel and degrading treatment and punishment (it is not enough to be ‘trying to improve the situation’ which can suffice for economic social and cultural rights). This is, I would point out, a problem with pressuring developing countries to become party to international treaties before they have the capacity to meet such obligations. I must admit that I sometimes get frustrated when I read recommendations for states to become party to long lists of human rights treaties, with no consideration of what that actually entails. It seems as if the writers of these recommendations believe that simply signing up to a treaty will do the trick, fix the problem. For me as a lawyer, it degrades the significance of legal obligation when States are pressured to enter into obligations when everyone involved knows these States cannot meet those obligations at that point in time. Of course, this is all part of the ‘game’ of being a ‘good member of the international community’. However, I feel that States really should ensure – and be helped in that journey if necessary – that they have at least minimal capacity to do what is required before they enter into binding legal obligations. From the minute they become bound, they are liable whether or not they are developing countries.
NY: What measures could be applied so as to ensure the international rules are applied at a local level?
SL: For me, international does not necessarily mean better. What we call ‘international rules’ are usually broad statements of principle, rather than precise and concrete rules that are capable of being applied on the ground. They are inspirational, and often lack the specificity that we require for managing day-to-day life. It may well be that a country’s domestic legal framework is sufficient to ensure that rights are protected in accordance with the State’s international commitments; in fact, that is the way it is supposed to be – states find their own way to meet their international obligations. There may be no need to ‘ensure that the international rules are applied at a local level’.
In the teaching of International Law, we always have a discussion about relationship of international and domestic law. Academics have had heated debates about this. Some say that these are two bodies of law, two separate bodies of law, and it is not possible to apply international rules at a local level just like that. Others argue they are both systems of law within the world of law, so International Law can be applied domestically just like that. Others believe that International Law is a higher body of law than domestic law, so in any ‘clash’, International Law has to be applied.
What does an academic debate matter in the real world, you might ask. It matters because it affects the issue probed in the question, whether International Law can be ‘applied at a local level’. Some states allow for the direct application of International Law in their domestic system because their legal theory regards them as being part of the same system. Legal doctrine in other states requires International Law to be turned into domestic law before it can be used. There is no right or wrong in this, they are just different approaches based on the reality that the world is made up of different legal systems, such as civil law and common law systems. The challenge is to work within the particular legal system to maximise what there is, and where it is not good enough, to work to improve it. My own concern is not actually with ensuring that international rules are ‘applied at domestic level’ but to ensure that states are meeting their international obligations. That means two things. The first is that they actively promote the values and approaches that lie behind the particular convention. If we are talking about conventions such as CATDPR and the Refugee Convention, these are infused with ideas of compassion, humanity, dignity and respect for the doctrine of individuals rights that we call ‘human rights’. I am speaking of reaching out to the community’s hearts and minds to persuade them of the values being supported. The second is that States regulate their internal governance in a way that complies with what they have committed themselves to do. The doctrine of State sovereignty usually means that states are left to their own devices to find a way to meet their international obligations. This does not mean there is no role for helping them, including in challenging the State on its way.
NY: Looking into the project Hong Kong’s War Crimes Trials, what difficulties did you and your crew encounter in gathering information?
SL: There were numerous challenges, this has been a very demanding yet deeply fulfilling project. The first related to the relevant case files. This was the first such attempt to pull together the story of the Hong Kong War Crimes Trials. Before the legal work could be done, there was a huge logistical exercise to carry out with location of the relevant files. The originals were at the UK National Archives, and had to be tracked down. I spent hours and hours reading through hundreds of files and was able to find them, and also identify supplementary files that related to the actual cases, and the policy and administrative issues surrounding them. Connections were drawn and links made through sheer hard work, and a fair bit of luck. This massive excavation exercise also involved trawling through the Hong Kong Public Records Office, the Imperial War Museum and private libraries such as that of Lord Anglesey. The connections between Hong Kong and contemporaneous had to be explored, and that meant looking at other British trials, as well as the Tokyo tribunal, and trials held by the Chinese, Americans, Dutch and Australians. This was not easy. Take for example, the Chinese trials. These documents are still locked up in archives in Nanjing and elsewhere. There were chance snippets found on the internet as old newspaper reports were digitised and haphazardly placed online. I had to rely on accounts of the trials in British files (found by painstakingly scouring them manually) and in one case, on documents held in the Academia Sinica in Taipei, Taiwan (I was assisted in this effort by a Taiwanese judge, and a Beijing lawyer who translated the judgement for me).
The nature of the case files provided major challenges to legal analysis. While there were well documented – the transcripts were very precise – these cases did not have reasoned judgements. The Hong Kong trials were military trials, and verdicts were delivered without a judgement explaining the court’s reasoning. So, to understand the case, we had to go through hundreds of pages of transcripts and documents. Some cases, such as that of Colonel Tokunaga Isao and Colonel Noma Kennosuke, were lengthy and complex. The task was rendered somewhat easier by having case reviews by Judge Advocates (lawyers) who reviewed the files that were sent over to them in Singapore, but we still had to review the entire file for each case. Gaining a big picture of the situation, and the linkages between cases – for example the very many Kempeitai cases from commanders down to the ranks – was immensely challenging. I was of course very fortunate that the Hong Kong Research Grants Council funded my research, which enabled me to digitise the case files and make them electronically accessible. This greatly facilitated our research.
Another challenge was finding eyewitnesses and direct participants who were still alive and could help shed light on this historic legal proceeding all those years ago. Investigations through specialist channels such as Prisoner of War associations and the British Army yielded nothing. Even the assistance of eminent local historians did not uncover new leads. However, after the Hong Kong media started to cover the work that I was doing, many members of the public contacted me. It must now be hundreds of people from around the world that have now called or written to me about the project, usually seeking or providing information about family members who were affected by what happened in Hong Kong in that time. Some people, such as Mr Stephen Tsui and Mrs Luba Estes, spoke about their own experiences. Mr Tsui, for example, spoke about his experience of torture. It was immensely helpful in linking up the dots, putting the jigsaw together. I was able to conduct interviews with some of them (see the website at http://hkwctc.lib.hku.hk/exhibits/show/hkwctc/home). These are enormously important historical accounts, and records of individual histories. But, until 2011, there was a very serious gap in the understanding of this time. I had still not been able to find files, or people who could shed light on the court itself. There was no ‘insider knowledge’ of the court itself that was to be found. That changed in May 2011, when Dr Donal Lowry, Reader in Imperial and Commonwealth History, and Irish History, at Oxford Brookes University, contacted me to say that he had read about my work, and that he knew a gentleman who had been a War Crimes Prosecutor in Hong Kong. I was ecstatic about this news, my numerous efforts to find former judges, prosecutors and lawyers had not borne fruit. Through Dr. Lowry, I met Major Murray Incell Ormsby, formerly of the West Yorkshire Regiment. He had been, from 1946-1948, a panel member (Judge) and then a Prosecutor of War Crimes Court No. 7 in Hong Kong. Major Ormsby was involved in 27 of the 46 trials that were held in Hong Kong. As a member of the panel, he sat on the earliest cases such as the Lantau Island case (Silver Mine Bay case) and the trial of Kempeitai Colonel Noma Kennosuke. As a Prosecutor, he prosecuted two of the ‘Invasion of Hong Kong’ trials (Major General Tanaka Ryosaburo and Lietenant General Ito Takeo), and the trial concerning the execution of Fred Hockley, shot down over Japan on the day of the Emperor’s capitulation to the Allies after the atomic bombings at Nagasaki and Hiroshima.
Major Ormsby, who has now very sadly passed on, was 92 years old when I interviewed him at his home on 21 and 22 July 2011, and conducted a follow-up interview by telephone on 4 August 2011. The precision and consistency of Major Ormsby’s long-term recollections about his extraordinary adventure as a young man in his twenties was exceptional. The transcripts provide a first-hand account of a remarkable person’s role in an important process of righting some of the wrongs of the Second World War in Asia, and are a priceless window into the past. Major Ormsby has been critical in the successful outcome of the Hong Kong War Crimes Trials project. I should like to add that my wonderful team at HKU, and my superb contributors to the book, were also indispensable.
NY: Do you see the war crime trials fair at all? And has any patterns or trends been observed throughout the research?
SL: I spent several years working closely on the trials, and drew from my own professional experiences of war crimes work, and my academic expertise. My conviction is that we should look at the big picture, and recognise the achievements without denying the stains on them. So, while there were definitely weaknesses, as trenchantly pointed out in Professor Alexander Zahar’s superb chapter in the book, I believe that on balance the British Army provided a surprisingly fair and just process of accountability in Hong Kong. The approach was summary and practical, with reliance on common sense and solid evidence rather than convoluted legal arguments. The facts spoke louder than the law in these cases. In the difficult circumstances of the post-war world in Asia, copious evidence was collated and brought before the four military courts about the perpetration of war crimes. Sometimes the evidence was properly linked to the accused, and sometimes not. There were acquittals and convictions, and adjustment of verdicts and sentences following review. I am unhappy about the use of the death penalty, which seems to have been quite enthusiastically used here, but I also realise that this was the penalty that was accepted at the time for the most serious crimes. Some of the decisions seem correct on the weight of the evidence and in accordance with the applicable law, and some seem suspect. As a whole, the Hong Kong cases seem to me to demonstrate that even when victors sit in judgment on the vanquished, and operate rather freely of the law and its practitioners, they can conduct the proceedings in a fair way. Perhaps this is the lesson for our generation: war crimes trials can be conducted in a way that is fair and expeditious without being legalistic and complicated.
I explained this assessment in an article in the Melbourne Journal of International Law in 2012, and I’d like to refer to some of that detail here.
The legal framework provided for a summary adversarial proceeding, but with numerous safeguards, such as the provision of notice of grounds of arrest and the evidence against an accused and arraignment before the court. Examination of the cases indicates that this was a robust and rigorous legal proceeding, offering a broadly fair trial in difficult circumstances. These were not ‘kangaroo courts’, especially when one considers that this took place immediately after a devastating war that had ravaged Asia, in a time where there were no computers, no satellite communications, no internet facilities or libraries for research, no specialised international criminal lawyers, etc. The summary nature of the proceedings emphasised expeditious trials, and ALFSEA Instruction No 1 (2nd ed) obliged with provisions such as one stating that trial would not be delayed for the attendance of unimportant witnesses.
The transcripts show the judges being rigorous in ensuring the accused were treated fairly and often making special efforts with Japanese Counsel. For example, Defence Counsel in the trial of Warrant Officer Omura Kiyoshi and four others was given two additional days to prepare his case. The Presiding Officer assured him that ‘the Court does not wish you to feel that you have been hampered in any way by lack of time or facilities bearing on your defence, and it also appreciates the fact that you only have one interpreter who is working all day in Court’. The file for the trial of Major General Tanaka shows the Court also being supportive of the Defence’s efforts in Japan to locate an elusive English-speaking Japanese officer whom an important prosecution witness said he encountered, and Nakamura Tokuo who interpreted for the accused when he spoke to the persons gathered at the Repulse Bay Hotel at the time of the takeover of Repulse Bay. The records show that time — and assistance — was given to the Defence to find witnesses, and have documents translated. The trial of Major General Tanaka showed that his Japanese Counsel was struggling with the adversarial British system, and reveals numerous instances of patience on the part of the Court.
The records do not show abuse of the accused or Counsel in court, although in the very first case, the Silver Mine Bay trial, there was a clear indication of racial prejudice. Here, the Presiding Judge told the two members of the accused who were sentenced to death that they were members of a black and evil race, but even that did not excuse the heinousness of their crimes. Even so, that was the very first trial after the war ended, and it does not appear to have been repeated in other cases. There are examples of the Japanese praising the proceedings, the Prosecution and the Court. The trial of Hong Kong’s so-called ‘No 1 War Criminal’, Colonel Noma, saw his Defence Counsel express his ‘sincere thanks for the considerate and fair way in which the trial has been conducted over this long period’ and publicly thank the Prosecuting Officer and his advisory officer for helpful assistance. Following his conviction and 12 year sentence, Lieutenant Ito Takeo enthusiastically thanked the Court for the thoroughness of his trial. But, he went further:
Before the trial commenced, in fact, I had worried of the procedure. Once the case started, however, I began to feel more at ease with the President and the members of the Court because of the way the trial has been conducted. In a word this must be attributed to the wonderful personality of the President and other Members of the Court as well. At this stage when the Court has given its sentence, I wish to express my gratitude.
One may of course take that praise for the proceedings with a ‘pinch of salt’ given that he had just escaped the death penalty, but these comments do not appear to be related to the outcome.
On the other hand, we cannot claim there were no problems, particularly if we look at them through the lenses of human rights standards of our day and age. There are some obvious weaknesses. The accused were mostly defended by Japanese lawyers who were not familiar with the British adversarial system. In fact, Major Murray Ormsby, perhaps the last surviving prosecutor from the Hong Kong war crimes trials, has emphatically underscored the weakness and passivity of Japanese Defence Counsel as a major problem with the fairness of the trials. Translation and interpretation problems arose regularly. For example in the trial of Colonel Noma, Colonel Kanazawa Asao faulted interpretation for inconsistencies in his statement. In the trial of Rear Admiral Naomasa and Captain Mayazumi Haruo, during the examination in chief of the accused, the interpretation was so bad as to be unintelligible.
There were conflicts of interest with multiple co-accused (in the Silver Mine Bay trial, there were 15 of them) running conflicting defences but all having the same single Defence Counsel, Captain M Croft. The most senior of them was Lieutenant Kishi, who said that he had orders from his immediate superior to defend against attack and use weapons to that end and acted in accordance with those orders following the attacks on the Japanese garrison at Silver Mine Bay. His 14 subordinates raised a combination of alibis, denial of any wrongful actions, superior orders, mistaken identity and outright denial of involvement. In the Hockley case, Mr Murata Kiichi had to defend several of the co-accused arguing conflicting positions on the nature of the instructions that were given in relation to what to do about the captured pilot Fred Hockley after the Emperor’s capitulation.
There was excessive reliance on affidavit evidence, denying the accused the opportunity to cross-examine. Sergeant Major Yokohata complained in his petition against the verdict that because the Prosecution filed a number of affidavits, he was denied the opportunity for cross-examination. The Defence in the trial of Colonel Nakano expressed solidarity with the many complaints about the volume of affidavit evidence in these trials, and complained about how most of the Prosecution’s case was built on affidavit evidence which was untested by cross-examination and ‘cannot be held to have the same weight as evidence spoken in the court’. The statistics in the Kinkaseki Mine case were particularly egregious: just seven live witnesses testified as to the facts, while 24 affidavits were submitted.
The charges using the vague ‘being concerned in’ concept appear to have, unsurprisingly, raised problems with specificity. Defence Counsel would challenge that but to no avail. For example, in the trial of Sergeant Hanada Zenji and three others, the Defence challenged the vagueness of the indictment. At a late stage of the Prosecution’s case, Defence Counsel in Noma challenged the charge sheet for duplication and the vague and non-specific nature of the charge. He alleged he had raised with the Prosecutor the problem of the abstract and vague charge sheet and had asked that it be rewritten with the specific charges mentioned clearly and separately, although he acknowledged that the abstract of evidence was concrete enough. The Prosecutor had told him that there would be no trouble in that case, but that if the Defence thought it essential they could ask for the charge sheet to be rewritten. Nothing was done, but as the trial proceeded, it became clear that the charge sheet contained duplication and generality, and would not be permissible in British legal practice. The Prosecutor’s account was that he told Defence Counsel that he was perfectly at liberty to make any application he thought fit, but that he considered that ‘an abstract of evidence together with statements of every witness proposed to be called by the prosecution constituted enough particulars for anybody’. The President of the Court’s response was:
It may be perfectly true that the charge would not stand in strict British law, nor possibly in a court martial, but this charge which has been approved by the Legal Section, ALFSEA, is perfectly in accordance with the charges in such cases. It is by no means any more vague than all the others nor contains more duplicity then charges in similar cases. So the charge is not going to be amended.
Nevertheless, the Hong Kong war crimes trials records do show that over the course of the trial, these vague and imprecise war crimes allegations were substantiated by disclosure of evidence, and the Defence did come to be on sufficient notice as to what the Prosecution was alleging. An example can be seen in the trial of Colonel Noma, where perusal of the court file shows that the Defence was sufficiently on notice as to what was being alleged of the Colonel.
There were no appeals as we know the concept today. Judge Advocates always reviewed convictions and sentences, but never observed the proceedings. These reviews were conducted in Singapore, and most were mundane and did not stand out as being particularly ably conducted. Despite the limitations of this method, the Judge Advocates were able to report to the Commander of Land Forces Hong Kong, who also received petitions from the accused. He would then endorse or not endorse the judgment and any punishment imposed.
Sentencing was certainly inconsistent, within the Hong Kong trials and also when compared to the other British trials in Malaya, Singapore, North Borneo, Burma etc. In his petition against the verdict and sentence, Sergeant Major Yokohata complained about the unfairness of his 15 year sentence compared to the 12 year sentence imposed on the unrepentant Sergeant Yoshida Bunzo in the connected Bridge House case tried before a differently composed war crimes panel. Unlike the trial of Yokohata Toshiro, the trial of Yoshida involved maltreatment to death, and the unrepentant accused there received a lighter sentence. Sergeant Major Toshiro’s sentence was not altered. The discrepancies were a source of official Japanese complaints, and as has been already discussed, after the trials programme was completed, the British authorities embarked on an exercise to standardise the sentences that were imposed across the board. According to Pritchard, the last Japanese war criminal in British custody ‘was released on 30 January 1957 after clemency was approved in December 1956’. In this light, the fate of the many who were executed following conviction certainly seems unfair.
NY: What are the differences comparing the war time trials and trials in Hong Kong nowadays?
SL: There are similarities, both being founded on the English common law. But, the trials of 1946-1948 were military trials, and I don’t think there has been any military proceeding in Hong Kong since the handover. Today’s trials in Hong Kong are civilian trials. They are – I expect – compliant with the International Covenant on Civil and Political Rights, which reflects the modern standard. Over 1946-1948, this did not exist, but I believe the trials were infused with a sense of the importance of a fair and just trial.