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 …
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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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