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Peter Wesley-Smith At the end of the Pacific war in 1945 it was open to the victors to administer justice to the defeated enemy, and many thousands of Japanese servicemen, prison guards, and civilians were brought before Allied military courts to be charged with committing war crimes. These courts were established throughout Asia, principally by the US, Britain, and Australia. One venue was the British colony of Hong Kong, newly recovered from the Japanese occupiers. British military tribunals operated there; so, somewhat surprisingly, did their Australian counterparts. Hong Kong was attacked on 8 December 1941, at the same time as Pearl Harbour (where the date was a day earlier), and British forces surrendered on Christmas Day the same year. Thereafter the colony was occupied by the Japanese army until the surrender nearly four years later. The occupation regime was a brutal one, with the expulsion of hundreds of thousands of local Chinese, camps for prisoners of war and non-Chinese civilians, insufficient food, 2 arbitrary beatings and executions, the infliction of torture by the Kempeitai (Japanese version of the German Gestapo), and so on. These activities provided plenty of material for post-war British army courts, which also heard cases from Shanghai, Formosa (Taiwan), and elsewhere concerning crimes against British nationals. The Australian tribunals did not deal with war crimes occurring in Hong Kong, where there were few Australian citizens, but with cases from the Pacific. The best-known war crimes trials were those at the international military tribunals at Nuremberg, against German war-makers, and Tokyo, against Japanese. These bodies dealt only with so-called Class A or ‘major’ war crimes: crimes against peace, such as planning or waging a war of aggression. Class B crimes (violations of the laws and customs of war) were the responsibility of national military courts such as the British and Australian, while Class C, crimes against humanity, though not prosecuted in the Hong Kong cases, were also dealt with at the national level. Preparation for the prosecution of suspected Japanese war criminals began in 1943 when the Allies set up a war crimes commission. At the Moscow conference on 1 November 1943 Roosevelt, Churchill, and Stalin gave joint warning that violators of the laws of war would be punished, 3 and in July 1945 at Potsdam ‘stern justice’ was promised them. The British preferred execution without trial for major war criminals and the Americans initially agreed (‘If I had my way I would take Hitler and Mussolini and Tojo and their accomplices and bring them before a drumhead court martial, and at sunrise the following morning there would occur an historic incident’), but Truman dissented and Stalin, who ‘loved show trials as long as everyone was shot in the end’ (as Geoffrey Robertson put it), went along with Truman. In the South East Asian area of command, policy was determined by MacArthur (Supreme Commander Allied Powers) and Mountbatten (Supreme Allied Commander South East Asia), assisted by various war crimes commissions, committees, and units and Judge Advocate General’s offices all busily collecting evidence and preparing prosecutions. Mountbatten wanted thirty-minute proceedings for allegations of atrocities, involving mere identification of the accused and execution within 24 hours. He also suggested the use of pentothal and lie detectors, and he set a target for his area of five hundred trials by the end of July 1946. But delays were caused by the shortage of staff, particularly legal personnel, and by the need to transfer defendants from their place of incarceration to the trial venue. Further, trials 4 took far longer than anticipated (initially, one day per case). British courts set to work in Singapore and Kuala Lumpur in January and in Hong Kong in March 1946. The first of the Australian trials in Hong Kong began in November 1947 and the last in April 1949. The British convened 45 trials in Hong Kong with 115 defendants of whom 15 were acquitted and 24 sentenced to death; the sentences of three men were not confirmed and of a further three were reduced after review. The Australian statistics are not dissimilar: of 42 defendants in thirteen trials four were acquitted, five were given the death penalty, two sentences were not confirmed and eleven were reduced. The percentages for Hong Kong are broadly comparable with those for all British (304 trials) and Australian (283 trials) military courts in South East Asia. Several questions arise: Jurisdiction The British military courts operated under the authority of a royal warrant of 14 June 1945, which based their jurisdiction, powers, and procedures on courts martial, though their special remit was war crimes (violations of the laws and usages of war committed during any war in which His Majesty had been engaged since 2 September 1939). 5 Although no special plea to the courts’ jurisdiction was permitted, crimes committed before September 1939 were not covered and the proper date of the end of the war (whatever that was!) remained relevant. Instead of prerogative powers, the Australian military relied on the War Crimes Act 1946 with its theoretical limits on jurisdiction. In practice these provided little impediment. The victims of war crimes had to be at any time resident in Australia, but inhabitants of Australian territories, such as New Ireland and Nauru (League of Nations mandates), qualified, and in any event victims could be citizens of any power associated with His Majesty in any war. There was no suggestion in the Act that universal jurisdiction might be available - but the prosecutor in one trial argued that jurisdiction derived from international law which the Act was in aid of, not derogating from, and if this were to be accepted the Act’s limitations were arguably of no effect. The Judge Advocate General in another case questioned the applicability of the Australian War Crimes Act to Hong Kong: since adoption of the Statute of Westminster each of the Dominions, and the UK, was a separate country, Hong Kong was a UK territory, and Australia not being an occupier could not enforce its municipal law in the colony. This contention could have been answered by resorting to international law, 6 but was in fact met by citing the external affairs power, an early anticipation of the High Court’s decision in Polyukhovich v Commonwealth Locale of crimes The great majority of cases in the British courts concerned conduct occurring in Hong Kong, though some crimes were committed in Formosa or Shanghai. In none of the Australian-tried cases were the facts local. The crime sites were Nauru, New Ireland, the Aroe Islands, the high seas, Thailand, and other places in the western Pacific. A major case involved Hainan Island, the only one where the offences occurred on Chinese territory. It is not clear why these cases were not tried in New Guinea, such as at Manus Island where many cases were heard up to 1951; perhaps Hong Kong was a convenient location for the majority of defendants and witnesses. The quality of justice The military courts, both British and Australian, were composed of senior military officers; some had legal training, most did not. They were advised by legally qualified prosecutors from the army, and the Judge Advocate General’s office supplied advice and sometimes a member 7 of the panel of judges. In the vast majority of cases there were defence counsel recruited from Japan and assisted by an Allied officer, and translations of important documents were made. No one reading the transcripts could fail to be impressed by the patience and professionalism of the courts’ officers. But the standards of justice were by modern civil standards somewhat defective. Witnesses giving oral testimony in court were rare; instead there was heavy reliance on affidavit evidence, often taken from former POWs long since repatriated, thus denying the opportunity for the accused to confront his accusers. A genuine appeal process did not exist, though proceedings were reviewed by a senior officer and, if a prisoner petitioned against conviction or sentence, findings had to be confirmed before being implemented. Almost by definition, court personnel must have been hostile to the accused. Yet the overwhelming impression the files give is that Japanese suspects were generally treated with courtesy and fairness. The offences It is surprising that there has been so much discussion of the meaning of ‘torture’ in relation to Guantanamo Bay, as war crimes can consist of acts which might rarely amount to torture. Fairly mild corporal punishment was treated as a war 8 crime by the Hong Kong military courts and there was never any doubt that practices such as ‘water-boarding’ could earn serious punishment. Under the practice of Allied military tribunals, some of what has occurred recently in ‘Gitmo’, Abu Graib, US client countries receiving victims of ‘extraordinary rendition’, and CIA ‘black sites’ in the so-called ‘war on terror’ constitutes war crimes. The Hong Kong tribunals readily accepted that war crimes could never be defended by pleading superior orders, municipal law, or military practice, and officers were routinely convicted of their underlings’ acts on the doctrine of command responsibility. Ex post facto law-making One of the great controversies attending the Nuremberg and Tokyo trials related to the application of individual liability for war crimes: it could be argued that, if waging war was by 1939 illegal under international law, the culpability belonged to states, not to individuals. Determining that statesmen and soldiers could be convicted after the conflict of war crimes was perhaps inventing new law after the fact and applying it retrospectively. But this issue did not arise in the Hong Kong trials, where the standards were supplied by established military laws and usages. Only in relation to Class A and 9 Class C crimes could the argument of ex post facto lawmaking have any purchase. Victors’ justice The defendants in the Hong Kong cases all served in the defeated Japanese armed forces and were judged by army officers who had defeated them. This does not necessarily reflect, however, on the quality or worth of what was done by military courts in Hong Kong. War crimes prosecutions have not historically been the sole preserve of victors acting against the vanquished; indeed German courts sat to try Germans after the war, unlike in Japan where the Emperor had pardoned all his citizens and an attempt was made to destroy all documentary evidence of criminal policy-making and execution. It would nevertheless have been salutary if Allied perpetrators of war crimes had also been put in the military dock. Some US and British personnel were courtmartialled for conduct during the second world war, and perhaps some Australians were as well, but, understandably of course, there was no major effort by the Allies to apply the same rules to themselves as they applied to the Japanese. Punishment 10 The public soon became weary of the war criminals saga. The Far Eastern Commission set a deadline of 30 September 1949 for the completion of all trials. This was achieved in Hong Kong by the British, though Australian trials continued until 1951 (conducted for the last two years on Manus Island); the Australians had had to leave Hong Kong because the local government denied them court accommodation. Many suspects were not tried at all (the British abandoned about nine thousand cases in the South East Asian sector for which investigations were complete). Death sentences, when confirmed, were carried out swiftly, but Japanese war criminals sentenced to imprisonment rarely served their full terms. It was expensive to keep convicts in prison, most were repatriated to Japan where there was pressure to release them, there was more interest in encouraging the development of the Japanese economy and in good relations with the West than in maintaining retribution for the war, and so on. The last of the Hong Kong convicts sentenced by an Australian tribunal was released in April 1957. Although the Japanese complained of illtreatment in prison, probably the worst suffering they endured beyond the normal privations of incarceration was their nightly choral rendition, organised by a guard at Stanley Prison in Hong Kong, of ‘There’ll Always Be an England’. 11 Ideological functions Gerry Simpson has suggested that war crimes trials serve ideological purposes: ‘exemplary performance, classical retribution and historical vindication’, legitimation, and dissidence, with law being used as an instrument of revenge, restoration, deterrence, and theatre. His analysis is more applicable to Nuremberg and Tokyo than to the quiet, thorough, professional conduct of Class B trials. [ENDS]
Peter Wesley-Smith graduated in law and history from the University of Adelaide and proceeded in 1970 to the University of Hong Kong for his PhD. He stayed in Hong Kong until 1999, retiring as Professor of Constitutional Law, and now lives in Kangaroo Valley. For some years he has been teaching a course in international law at the University of Macau.
The Trial of Japanese War Criminals in
Hong Kong 1946-9