Rediscovering the War Crimes Trials in Hong Kong, 1946-48

Article excerpt

In Hong Kong, from 28 March 1946 to 20 December 1948, four British military tribunals tried war crimes cases from across the British colonial territories of Hong Kong, Kowloon and the New Territories, and also from Formosa (Taiwan), China (Waichow and Shanghai), Japan and from the high seas. The author has made the process and the cases publicly accessible online through the Hong Kong's War Crimes Trials Collection website at hkwctc.lib.hku.hk. This paper is a window into the rediscovered Hong Kong war crimes trials and the key issues in international law that they raised. Further advanced research by international experts is currently underway for a book commissioned by Oxford University Press, due for publication in 2013. As such, this article will provide a 'taster' of what is emerging from the research that is currently in progress. The author's intention is to present the Hong Kong war crimes cases on their own merits, to allow them to be understood in their own right. The author does not engage in a comparative study of what was done elsewhere then or in recent years; that would be a major project for another occasion. The author instead seeks to draw out some of the richness and diversity of these cases as they are, and to enlighten our contemporary understanding through a look back at a process that was part of the making of modern international criminal law.

CONTENTS

I   Introduction
II  How There Came to be War Crimes Trials in Hong Kong
III The Legal Basis for the Trials
IV  Overview of Some of the Legal Issues Arising in the Hong Kong
      Cases
      A Jurisdiction of British Military Tribunals over War Crimes
        in Hong Kong, Formosa (Taiwan), China (Shanghai and Waichow),
        Japan and on the High Seas
      B Subject Matter Jurisdiction
      C Personal Jurisdiction
      D Temporal Jurisdiction
      E Procedure
      F Superior Orders
      G Modes of Responsibility
      H Sentencing Issues
V   Selection of Cases
      A The Shanghai (Bridge House et al) Cases
      B The Kinkaseki Mine, December 1942-May 1945, Formosa (Taiwan)
      C The Tone and the Behar
      D The Sinking of the Lisbon Maru
VI  Other Connected Proceedings
      A Traitors, Quislings and Renegades
      B Australian Trials in Hong Kong
      C Tokyo Tribunal
      D Other Trials of Japanese Connected with Hong Kong
          1 Lieutenant General Takashi Sakai
          2 Lieutenant General Isogai Rensuke
          3 Lieutenant General Kuichi Tanaka
          4 General Tanaka Hisakasu and Five Others
VII Concluding Observations

I INTRODUCTION

From 28 March 1946 to 20 December 1948, (1) four British military courts in Hong Kong adjudicated war crimes cases from across the British colonial territories of Hong Kong, Kowloon and the New Territories, (2) and also from Formosa (Taiwan), China (Waichow and Shanghai), Japan and from the high seas. These were British, but not 'all British' trials--there was, for example, active participation from Canada through seconded personnel and also participation of non-British victims and witnesses, and Japanese defence counsel.

There were a total of 46 trials of 123 individuals. Of the 46 judgments issued, 44 were confirmed against 108 individuals, with 14 acquittals. The majority of cases from Hong Kong, Kowloon and the New Territories concerned the maltreatment of persons taken into the custody of the Kempeitai. (3) These cases raise striking similarities in terms of the modes of arrest, the conditions of detention, the type of torture used against persons in custody and the conduct of the accused. A second concentration of cases comes out of the Japanese prisoner of war ('POW') camp system in Hong Kong and Formosa. (4) From Hong Kong itself, including Hong Kong Island, Kowloon and the New Territories, there is just one case, but it covers all the POW camps during the occupation. (5) This one case reveals how strikingly similar the treatment of POWs in Hong Kong was to those in the nine Formosa (Taiwan) POW camp cases. …