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

Linton, Suzannah, Melbourne Journal of International Law

G Modes of Responsibility

The only mention in the Regulations Annexed to the Royal Warrant to a mode of responsibility was in reg 8(ii), which went towards the controversial contemporary notion of joint criminal enterprise ('JCE'):

   Where there is evidence that a war crime has been the result of
   concerted action upon the part of a unit or group of men, then
   evidence given upon any charge relating to that crime against any
   member of such unit or group may be received as prima facie
   evidence of the responsibility of each member of that unit or group
   for that crime. In any such case all or any members of any such
   unit or group may be charged and tried jointly in respect of any
   such war crime and no application by any of them to be tried
   separately shall be allowed by the Court. (190)

Rule 16 of the Rules of Procedure for Trials by Court Martial under the Army Act 1926 allowed for the joint trial of several co-accused 'for an offence alleged to have been committed by them collectively'. There were many such trials in Hong Kong, the largest being the first trial, which was for the Silver Mine Bay massacre (15 accused in total). (191) Nevertheless, all the Hong Kong trials, whether individual or joint trials, involved the accused being charged with 'being concerned in' war crimes. The British military authorities used this broad notion of 'being concerned in' war crimes to draw in all forms of perpetration, ranging from command responsibility to negligence to direct perpetration. This was explained by the prosecution in the trial of Colonel Noma Kennosuke, which appears to be a command responsibility case (the Colonel having been the Commander of all the Kempeitai in Hong Kong). He was nevertheless charged with 'being concerned in' criminal acts, but by way of his command responsibility. According to the prosecution:

   It is well to understand clearly what is meant by this expression
   'concerned in', since it is the basis of the indictment. By saying
   accused [sic] was 'concerned in' the alleged misdeeds is meant that
   he was so senior in rank and appointment, and yet so closely tied
   to the Kempeitai personnel in the chain of command, that whatever
   operations they undertook, his planning and guidance were present
   and paramount. And when those operations are tinged with
   illegality, then accused [sic] can be said to be 'concerned in' the
   misdeeds and charged on that basis. As to whether he was culpably
   concerned--ie to such an extent as to render him guilty of this
   charge and thereby deserving punishment, you can decide that
   considering the evidence side by side with the legal responsibility
   a CO incurs for his underlings [sic] criminal acts. (192)

This shows the grotesquely all-encompassing nature of this concept.

An equally peculiar brew of seniority, strict liability and command responsibility was presented in the prosecution's closing address in the trial of Captain Ushiyama Yukio. Here, the prosecutor submitted that the expression 'being concerned in' applied because the accused was 'senior in rank and appointment at the Western Kempeitai HQ', and the fact that he was in command of all Kempeitai personnel made him 'unquestionably' responsible for their actions. (193) According to the prosecutor's understanding:

   When actions of subordinates were the negation of legality [as]
   would be the case when tortures and ill-treatment are frequently
   perpetrated, then clearly, Ushiyama could be said to be concerned
   in the misdeeds and charged accordingly. (194)

The use of this umbrella term is of course directly relevant to the continuing controversy over the doctrine of JCE. (195) It is now widely recognised that the famous decision of the ICTY Appeals Chamber in Prosecutor v Tadic was not based on a comprehensive survey of the extant practice. (196) The Hong Kong cases could indeed have been relied on as evidence of state practice.

As noted elsewhere in this paper, many of the trials held in Hong Kong raised the issue of subordinates being ordered by superiors or required by law, to commit, through act or omission, certain acts that led to them facing war crimes charges. Several of these cases raise fascinating issues to do with euphemisms and ambiguous instructions, illustrating how language can be used to secure the commission of war crimes. A good example of this genre was the murder of downed British pilot Fred Hockley in Japan. (197) Several hours before the Japanese Emperor's capitulation on 15 August 1945, Hockley was shot down in his aeroplane and forced to bail out. 'He landed uninjured at Chiba-Jen [where] he was captured by members of a civil defence unit, and turned over to the 426th Regiment, a part of the 147th Division'. (198) After the 426th Regiment reported Hockley's capture to the 147th Division, he was to be transported to the Division for interrogation.

The situation then became uncertain after the Emperor's speech of capitulation. Hockley was murdered that night, on the basis of instructions that went out from the Divisional Headquarters to 'dispose of' (shochi seyo) Hockley themselves. The prosecution argued that the word 'shochi se', or whatever it was that was uttered, had a strong implication that Hockley should be killed. By the time the order got to the direct perpetrator, there was no ambiguity: he was ordered to kill. The language used was 'shokode shochi seyo' which meant 'to kill'.

The defence disputed the meaning of the word 'shochi', arguing:

   that the word meant 'to dispose of, to take measures or steps, to
   act or ... to deal with' and there is not the 'slightest suggestion
   that it could mean to kill'. The word used, according to [the
   defence], was 'shochi seyo' which had no implication that the
   victim would be killed. Instead, he was to be treated in accordance
   with the rules. (199)

According to the Judge Advocate, the Court went to great trouble in enquiring what expression was actually used and what meaning should be attached to it. He advised that

   [i]t seems fairly clear that the original expression used was
   'Shochi se', an ambiguous word which apart from the meanings
   referred to above may have a sinister import ... Reviewing the
   evidence against Hirano as a whole I think that the Court were
   [sic] justified in believing that when he issued instructions to
   the unit he intended that Hockley should be killed. The
   unsatisfactory nature of Hirano's own evidence and particularly his
   evasive answers on pp 88-94 of the record go some way to strengthen
   the prosecution case. (200)

Other cases where the language of war crimes came into play include the orders to the Captain of the Japanese heavy cruiser Tone to 'dispose of the rest' and 'immediately dispose of the prisoners', meaning the majority of the survivors of the sunken Behar (see later discussion of this case in Part V); (201) and the order allegedly made to Sergeant Major Ito Junichi to take 'suitable steps' and 'finally deal with' two local Chinese in the custody of the Kempeitai. (202)

The decisions in these Hong Kong cases came in the wake of the US Supreme Court In re Yamashita ('Yamashita') judgment upholding the conviction of the Japanese General on the basis of command responsibility. Several cases involved the parties referring to the judgment. (203) But beyond mere recitation of the judgment by the parties from time to time in opening and closing statements, there was virtually no debate over the meaning of the concept. For example, in the closing arguments in the trial of Major General Tanaka, the prosecution cited Yamashita as authority for his proposition that the Commander:

   must take such appropriate measures as are within his power to see
   that inhumane acts do not occur. Thus while isolated instances may
   occur which are not in the power of the Commander to prevent, when
   the abuses are widespread it argues that properly effective
   measures have not been taken. (204)

The defence counsel did not make submissions about the concept of command responsibility in international law, although he did make submissions on the facts, arguing that the accused had in fact complied with his duties under international law. (205)

Major Uete Taichi raised an interesting issue that, in the Japanese army, commanders are not responsible for people just because they are subordinates. His argument was based on the structure of the Japanese Army. He told the Court that

   [t]he basic principle of supervision in the control of the Japanese
   army is that the superior will only supervise and control his
   direct subordinates. This principle is followed in turn by everyone
   and the whole scheme of supervision would be complete. The army
   commander-in-chief would only supervise the chief commandant which
   was his direct subordinate to him. The chief commandant likewise
   was responsible to supervise only his direct subordinate which was
   the branch camp commandant. It was the responsibility of the branch
   camp commandant to supervise or control he [sic] sub-branch camp
   commandant and the staff under his camp. If the army
   commander-in-chief would dare to supervise the branch camp
   commandant directly disregarding the position of the chief
   commandant he would be breaking the line of chain [sic] which could
   never be allowed. It is the same in the case of the chief
   commandant if he would dare to supervise or caution directly the
   sub-branch commandant or the staff there. (206)

In some cases, the alleged existence of a command relationship was weakly evidenced. The invasion cases (the trials of Major General Tanaka Ryosaburo, Major General Shoji Toshishige and Lieutenant General Ito Takeo) saw the Commanders alleging that the crimes, if they had been committed, were perpetrated by persons for whom they were not responsible. (207) The evidence was not as strong as one would have wished in relation to the identity of the troops responsible for the atrocities during the invasion. This explains the acquittal of Major General Shoji Toshishige, and the partial acquittal of Lieutenant General Ito Takeo, where in making his closing address, the prosecutor dropped the charges in relation to the killings at Tytam Tuk pumping station, the rape of European and Chinese nurses at the Jockey Club emergency hospital, the rape of Chinese women and murder of Chinese males at Blue Pool Road and the killing of British soldiers in the area around the Maryknoll Mission and the St Stephen's Hospital massacre:

   After very carefully sifting the evidence in respect of those
   atrocities committed in the five different places just mentioned,
   the Prosecution feels that there is such a large element of doubt
   as to which Japanese troops were involved that it can in no way
   inculpate the accused. (208)

The evolution of the concept in international criminal law has thrown up particular challenges in the area of the mental element. Was it about strict liability? Or was it about actual knowledge or implied knowledge? Was it 'must have known' or 'should have known'? The submissions did occasionally engage with these issues. The mens rea of command responsibility was discussed in the trial of Major Uete Taichi and six others, where the prosecutor argued that the Court should accept that

   the superior is liable for illegalities of which he was aware and
   failed to stop. You may agree that he may have become 'aware'
   either by actually ordering--or by permitting--or by countenancing.
   And what I suggest with respect is an obvious deduction, he is
   also liable where he wilfully ignores the danger signal. This
   responsibility is even more stringent than if you follow the
   judgement of the American Supreme Court in re Yamashita. (209)

After citing from Yamashita, the prosecution submitted that 'this does not make the proof of actual knowledge in the accused an essential [element] in the Prosecution's case'. (210)

Knowledge and a notion of moral responsibility as legal responsibility were raised in relation to Lieutenant General Kinoshita. The reviewing Judge Advocate advised that the accused, a Commander in the Shanghai Kempeitai, could be said to be responsible for and concerned in the numerous acts of cruelty practised by his subordinates, since he knew of the treatment meted out to prisoners. (211) In relation to one charge of torture, Kinoshita was the senior officer on the scene and yet he did nothing whatsoever to alleviate the victim's suffering. As to what he did not actually know, the Judge Advocate advised that 'It was certainly his duty to know and he himself admitted that even without that knowledge he owed a moral responsibility. I consider that the Court was justified in convicting Kinoshita of all the Charges'. (212)

In the trial of Colonel Noma, the prosecutor alluded to the limits of the doctrine, pointing out that 'some would, might even contend, there is an absolute liability'. (213) The prosecutor, however, set out a vision that was not about strict liability and emphasised knowledge, whether actual or implied. He argued, without expanding how far it would go, that there definitely would be responsibility of the Commander in the following circumstances:

1 Where he orders the criminal acts;

2 Where he knows of them, and either permits them or fails to take adequate measures to prevent their continuance.

And as a projection of the second case, if he has warning of wrongdoing and does not investigate, the Prosecution claims once again, that he incurs a criminal liability. You will see then that, knowledge in the accused is the essential factor here; it is submitted that as [sic] the only real point that you have to decide. (214)

Noma was a case where the prosecutor was able, in summing up, to trace the issue of the knowledge of the accused through the evidence. He argued that 'the corner stone, the very crux of this whole case is knowledge of the accused; or the proof of warning recklessly disregarded'. (215) Among the issues raised by the prosecutor was what information the accused had so as to put him 'on enquiry as to the practices of his underlings', (216) including complaints that were lodged with the Governor about the conduct of the Kempeitai and conveyed to him, and his own personal visits to the places of detention where torture was carried out and the close proximity of his own office to one such location. (217) The defence did not challenge this presentation of the law of command responsibility. It argued that the accused was worried about the possibility of torture and other abuse of persons in custody and he took all the steps within his power to prevent them occurring, including meting out severe punishment on subordinates. (218) His subordinates either did not tell him about misdeeds or sought to conceal them. (219) Counsel for the accused submitted that 'the accused then, being kept in ignorance of any such illegal acts of his subordinates, cannot be said to have acquiesced in such illegalities ... the accused left no stone unturned in his efforts to carry out the supervision of his men'. (220) Counsel asked, 'is he yet to be blamed for not knowing about their misdemeanours?' (221)

In his closing address in the trial of Lieutenant General Ito Takeo, the prosecutor cited Yamashita as authority for arguing for a duty to prevent crimes by subordinates and submitted that 'he must take such appropriate measures as are within his power to see that inhumane acts not occur'. (222) There is a suggestion of strict liability in relation to widespread abuses: 'Thus, while isolated incidents do occur which are not in the power of a commander to prevent, when the abuses are widespread it argues that properly effective measures have not been taken'. (223) Here too, the prosecutor linked law to facts to point out that the accused fully realised that his troops were capable of misdeeds, citing a speech that he made to his subordinates about compliance with the laws of warfare. For the prosecutor, simply giving warnings was not enough:

   Bearing in mind what I have quoted from the law on this subject, it
   is maintained that he must take really effective measures to
   prevent breaches of the conventions. He cannot be excused by
   proving simply that he warned his troops against committing acts in
   contravention of the conventions. (224)

The prosecutor emphasised the duty to punish as a constructive measure that would be expected of a diligent Commander:

   It is pointed out that the effectiveness of any regulation,
   convention or law corresponds directly to the sanction behind it.
   In this case surely, the sanction would be the inevitability of
   punishment in the event of contravention of the instructions.
   Obviously, punishment for the infractions was not inevitable
   because, in fact, no punishments were awarded. The measure which
   could have been taken, therefore, was an assurance of punishment in
   the event of failure to observe the rules. There can be no doubt
   that the measure was neither enforced nor so much as threatened ...
   As a responsible commander, the Accused is accountable for
   preventable misdemeanours by troops under his command. The
   precautions he alleges to have taken were palpably insufficient.
   He, as a commander, therefore cannot escape the consequences of
   the acts of his subordinates. (225)

On the issue of reporting unlawful acts to superiors up the chain of command within the POW camp command structure, Major Uete argued that it was

   [n]ot permissible that the branch camp Commandant ever dared to
   make a report to the chief Commandant, to make protest concerning
   the duty which was confirmed to his responsibility. This basis is
   very well stipulated in the Internal Service Regulations of the
   Army, which says no permission is allowed for anyone to make a
   report of each and every trifle [sic] matter to his superior in
   order to evade his responsibility which was to be confined on
   himself. (226)

It is tempting to speculate that, despite the efforts of the British prosecutors, the doctrine of command responsibility caused some sympathy on the bench. This is because, in general, the senior officers who were convicted received surprisingly light sentences in comparison to the lower ranks. For example, all bar one of the top Commanders of the POW camps on Hong Kong and Formosa who were convicted received term imprisonment as opposed to death sentences, (227) and none of the commanders of the invasion of Hong Kong who were convicted received the death penalty. (228) In all these cases, the Commanders either denied that they were the commanders of the persons who committed the atrocities, denied that they knew about those atrocities or denied that they had autonomy of action (ie, they were acting under superior orders). The latter may certainly also have had an impact on the attitude of the officers sitting on the panel, since it was just in 1944 that their own law, reflected in the Manual of Military Law 1929 (Amendment No 34 of 1944), was changed on this point.

H Sentencing Issues

Consistent with para 450 of the Manual of Military Law 1929 (as amended), the Regulations Annexed to the Royal Warrant permitted several forms of punishment following conviction although they were more specific. These punishments could range from death (either by hanging or by shooting) to imprisonment for life or any less term to confiscation or restitution to a fine. (229) The final outcome from the Hong Kong trials was 21 death sentences (originally 24, but three were commuted), 14 acquittals and 87 terms of imprisonment ranging from six months to life.

Given the three-man composition of the Hong Kong courts, imposition of the death penalty required unanimity. (230) As a matter of policy, execution of death sentences was deferred if testimony of convicted persons proved to be of use in other trials. (231) ALFSEA Instruction No 1 (2nd ed) was detailed in this area of executions. (232) In Hong Kong, convicted war criminals were executed by judicial hanging by the hangman at Stanley Prison, in presence of the Assistant Provost Marshal HQ Land Forces, a medical officer detailed by Medical HQ Land Forces, a member of A Branch HQ Land Forces, a military witness and an interpreter. (233) Major Ormsby, in his interview with the author, spoke of having to witness several such executions as the representative of the prosecution. (234) The bodies of executed Japanese war criminals were buried at sea off Hong Kong: 'The policy is that these bodies will be disposed of so that no Japanese memorial can be made of the remains. They will therefore be buried at sea'. (235)

Thanks to a policy of appeasement and rapprochement with Germany and Japan in the transition from the Second World War to the Cold War, those imprisoned in Hong Kong were eventually to benefit from substantial sentence reviews and reduction, then repatriation to Japan and early release. The files suggest that by the end of the 1950s, no Japanese were still serving terms pursuant to the sentences imposed by the Hong Kong war crimes courts. John Pritchard, an expert on war crimes trials during the Second World War, describes the changing political environment, and the move towards closing the book on the story of the war crimes:

   Petitions signed by hundreds of thousands of Japanese citizens and
   presented to the British Embassy in Tokyo begged London to cease
   its degrading and inhumane treatment of people who had been made
   sacrificial scapegoats for a war that all right-thinking people now
   deplored. The treatment of war criminals came to be regarded as a
   litmus test by which each Allied country's desire for cordial
   relations with the new Japan might be measured. Remarks made by
   church officials and others in the United Kingdom supporting the
   early release of war criminals on the grounds of Christian charity
   were greatly welcomed by the Japanese. (236)

In 1947, the British Government agreed to the representations of General Douglas MacArthur, Supreme Allied Commander in Japan, and began to scale down British war crimes operations and repatriate all surrendered Japanese personnel held in custody. (237) By 1949, the policy had developed further: prisoners would be repatriated, provided the Supreme Commander agreed. (238) In April 1949, the Far Eastern Commission in Washington recommended to all member governments that the investigation of minor war crimes should be completed by the end of May 1949, and that the minor war crimes trials themselves should be completed, if possible, by 30 September 1949, and the UK agreed to the recommendations. (239)

Mirroring arrangements for Europe, a sentence review board was set up for the Far East--Number 2 War Crimes Sentences Review Board ('Far East Review Board')--in January 1949. (240) Its objective was to review Far Eastern war crimes sentences 'to ensure uniformity of punishment for similar offences'. (241) The British Secretary of State for War's direction, transmitted through the chain of command to the Commissioner of Prisons in Hong Kong, was that at the discretion of the Prison Governor, the prisoners would 'be eligible for a further one third remission of his final sentence, for "Good Conduct"'. (242) Pritchard reports that on the recommendations of the Far East Review Board, 109 sentences were reduced by the British Secretary of State for War (for example, all life imprisonment sentences were reduced to 21 years). (243) According to Pritchard, massive pressure from Japan in the 1950s led to a Cabinet decision on 28 July 1955

   that a sentence of fifteen years' imprisonment should be
   substituted for convicted war criminals who either originally had
   been sentenced to imprisonment for life by the courts or since then
   had had their death sentences commuted to life. This was the moment
   at which the Cabinet ruled that the 'quantum' for a life sentence
   for war crimes should henceforth be reduced to a period of fifteen
   years other than in exceptional (for which read 'politically
   hypersensitive') circumstances.... The effect of this policy is
   that virtually no Japanese war criminals convicted by British war
   crimes courts remained in custody longer than ten years; all had
   been released by the beginning of 1957. (244)

On 10 November 1949, there were 86 Japanese persons serving their sentences at Stanley Prison in Hong Kong: 29 were from the Australian war crimes courts, 55 from war crimes courts established by the Royal Warrant, and one from the Supreme Court of Hong Kong. (245) All of the prisoners petitioned in November 1949 to be sent back to Japan to serve their sentences. (246) Their sentences were reviewed by the War Office Review Board in 1949, and again when the Japanese Government …

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Publication information: Article title: Rediscovering the War Crimes Trials in Hong Kong, 1946-48. Contributors: Linton, Suzannah - Author. Journal title: Melbourne Journal of International Law. Volume: 13. Issue: 1 Publication date: June 2012. Page number: 315+. © Not available. COPYRIGHT 2012 Gale Group.

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