Academic journal article Melbourne Journal of International Law

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

Academic journal article Melbourne Journal of International Law

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. Just three cases dealt with the invasion of Hong Kong. (6) Then, there were three cases that took place on ships on the high seas. (7)

As was the norm for British military trials of that time, (8) the judgments were simply verdicts and did not contain reasoned decisions. These were proceedings underpinned by a rule that '[t]he Court shall take judicial notice of the laws and usages of war', (9) and this could also explain the noticeably spartan nature of the arguments on the law. Nevertheless, all the case files contain meticulously recorded official transcripts of proceedings, sworn affidavits and documentary evidence: most have both the opening and closing submissions and almost all contain reviews of the proceedings by Judge Advocates. These reviews are important for understanding the cases. Some of the reviews were detailed evaluations, written by military lawyers tasked to advise the Commander of Land Forces in Hong Kong, as the Reviewing Officer, on whether to confirm the decisions of the Court. These reviews, supplemented by the opening and closing statements, transcripts and exhibits, constitute the record of the proceedings. These reviews are obviously not as detailed as reasoned judgments, and create significant challenges of interpretation. Nevertheless, the challenges are not insurmountable and the files do provide vital information to enable skilled researchers to make informed and enlightening evaluations.

Customary international law is a body of binding rules that have built up through consistent practice of States (usus), accompanied by a sense of being obliged to behave in that particular way (opinio juris). Customary international law was well-established as a source of law by the time of the Second World War trials. (10) Customary law can bind in its own right, and can bind States even if they have not ratified a treaty, should that treaty's terms be reflected in customary law. According to the International Military Tribunal at Nuremberg ('IMT at Nuremberg'):

   The law of war is to be found not only in treaties, but in the
   customs and practices of states which gradually obtained universal
   recognition, and from the general principles of justice applied by
   jurists and practised by military courts. This law is not static,
   but by continual adaptation follows the needs of a changing world.
   Indeed, in many cases treaties do no more than express and define
   for more accurate reference the principles of law already existing.
   (11)

The United Nations War Crimes Commission ('UNWCC') observed that '[a]lthough the findings and sentences of British Military Courts trying war criminals do not lay down rules of law in an authoritative way, they are declaratory of the state of the law and illustrative of actual State practice'. (12) This author agrees that the British cases from Hong Kong, including to some extent the Judge Advocate reports, generally form part of the usus and opinio juris upon which customary international law is established. In some instances, it is clear that the British courts were relying on existing customary international law, for example, in the basic conception of the war crime as a violation of the laws and usages of war that underlies the proceedings.

The case files of the trials of this neglected process of accountability have recently been digitised and made publicly accessible through a Hong Kong Government-funded project at the University of Hong Kong, the Hong Kong War Crimes Trials Collection ('HKWCT Collection'). This paper is a window into the rediscovered Hong Kong war crimes trials and the key issues for international law that they raised. The author's intention is to present the Hong Kong war crimes cases on their own merits. 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 allow these cases to stand on their own merits (or demerits). The article begins with the necessary story, not known to everyone, of how there came to be war crimes trials in Hong Kong and examines the legal basis for the proceedings. It is a lawyer's reconstruction, partly from relevant materials in the case files that have been examined, supplemented by the secondary sources. The paper then moves to consider some of the important legal issues, and introduces four cases that present a detailed range of the issues that the Tribunals had to deal with. The article also places the trials in Hong Kong in a wider context, considering trials in China and Japan that concerned Hong Kong, trials held by Australia in Hong Kong, as well as parallel trials of British or Commonwealth nationals for collaboration with the enemy. The article concludes with some general observations about the process.

II HOW THERE CAME TO BE WAR CRIMES TRIALS IN HONG KONG

Having surrendered Hong Kong, Kowloon and the New Territories to Japan on 25 December 1941, (13) Britain reclaimed her colony on 30 August 1945 when the first British naval forces arrived in Victoria Harbour. (14) They were led by Rear Admiral Sir Cecil Harcourt, and comprised 19 ships including the battleship Anson and the aircraft carrier Indomitable. In anticipation of the formal Japanese surrender at Hong Kong, (15) an interim military administration was established on 1 September 1945, giving the Commander-in-Chief of the returning liberating forces full judicial, legislative and executive powers. (16)

Policy decisions about the prosecution of war crimes in international tribunals, military tribunals and domestic courts had been made at the governmental level some years before the end of the war, with the decisions concerning vanquished Germany eventually extended to cover Japan. Milestones in the long and convoluted process leading to the Hong Kong war crimes trials include the 7 October 1942 Declaration by United States President Roosevelt (17) and the 17 December 1942 Declaration by the governments of Belgium, Czechoslovakia, Greece, Luxembourg, the Netherlands, Norway, Poland, the US, the United Kingdom, the Union of Soviet Socialist Republics, Yugoslavia and the French National Committee, condemning German atrocities against the Jews and reaffirming their 'solemn resolution to ensure that those responsible for these crimes shall not escape retribution, and to press on with the necessary practical measures to this end'. (18) Explaining the 17 December 1942 Declaration, Anthony Eden, the British Secretary of State for Foreign Affairs, explained to the House of Commons that he 'would certainly say it is the intention that all persons who can properly be held responsible for these crimes, whether they are the ringleaders or the actual perpetrators of the outrages, should be treated alike, and brought to book'. (19) This move towards criminal justice was further elaborated by the UK, the US and the USSR in the 1943 Moscow Declaration. (20) Those German officers and men who had been responsible for or had taken a consenting part in these atrocities:

   will be sent back to the countries in which their abominable deeds
   were done in order that they may be judged and punished according
   to the laws of these liberated countries and of the free
   governments which will be created therein ... without prejudice to
   the case of the major criminals, whose offenses have no particular
   geographical localization and who will be punished by the joint
   decision of the Governments of the Allies. (21)

This policy was extended to the Far East, to cover the Japanese. (22) In October 1943, the UNWCC was set up in London to collect lists of criminals, record available supporting proof, and make recommendations as to the tribunals and the procedure for trying such criminals. (23) The UNWCC's Far East sub-office was set up in November 1944 in Chungking, China and collated evidence about suspected Japanese war crimes. (24)

In the UK, once a decision had been taken to follow the judicial route as opposed to summary executions, there was a rigorous debate on the kind of laws to be applied to the captured enemy accused. It became acute with the two War Crimes Bills that were tabled before Parliament in 1942 and 1943. (25) The Foreign Office's William Malkin is cited as having said that: 'if there is one rule of International Law which is well-established, it is that the members of a hostile invading or occupying army are not subject to the municipal law of the country concerned or to the jurisdiction of its civil courts'. (26) There were also discussions over whether a special court could be established to cover crimes that could not be tried in national courts, or whether the Field General Courts Martial could be used to try suspected war criminals from the Axis powers. (27) As Pritchard puts it, '[t]hose responsible soon accepted it would be unfair and wrong to apply national law to members of the armed services of a foreign state without prior consent'. (28)

By 21 November 1944, the British War Cabinet had determined that 'war crimes committed against British subjects or in British territory should be dealt with by military courts set up in Germany (or wherever else was appropriate)'. (29) The Yalta Conference saw the three Allies--the US, UK and USSR--again commit to the prosecution of Axis leaders. (30) After its defeat following six years of war in Europe, Germany signed an Instrument of Unconditional Surrender on 7 May 1945, (31) and accepted the terms of the Allies' Potsdam Agreement. (32) On 26 July 1945, the Potsdam Proclamation Defining the Terms for the Japanese Surrender ('Potsdam Proclamation') was announced by US President Harry Truman, British Prime Minister Winston Churchill and President Chiang Kai-shek of the Republic of China. (33) Following the nuclear attacks on Hiroshima and Nagasaki, the Japanese Emperor capitulated on 14 August 1945 (34) and then formally surrendered on 2 September 1945. (35) In surrendering, the Japanese agreed to the Potsdam Proclamation, which included the Allied statement that: 'We do not intend that the Japanese will be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners'. (36) Shortly after, on 19 January 1946, the International Military Tribunal at Tokyo ('IMT at Tokyo') was established by General McArthur as Supreme Commander of the Allied Forces in the Far East. (37)

The core of British investigations moved to Singapore, where the Headquarters of Allied Land Forces in South East Asia ('ALFSEA') formed and controlled investigating teams on an inter-Allied basis for work in the field, coordinated by specialist officers and assisted by Allied officers. (38) The account given in the History of the United Nations War Crimes Commission about the machinery of operations in Singapore is illuminating, not least concerning the challenges that had to be overcome. (39)

The files reveal that the UK had another agenda. It also pursued war crimes prosecutions as a means of reasserting its authority and reclaiming prestige over its colonial territories, including Hong Kong.

We see this from several notes in archival files concerning Japanese crimes against British nationals in China:

   I regard it as a matter of great importance that these matters [the
   investigation and prosecution of War Crimes in China excluding Hong
   Kong] should not be left in American hands. British prestige in
   China appears to have sunk already to a low level and if we are to
   delegate the duty of punishing the guilty, a very unhappy
   impression is likely to be produced involving great prejudice to
   our own people. (40)

   ... it seems that British prestige will be adequately upheld in
   that War Criminals charged with crimes against British subjects are
   being brought to trial before British courts. Where the cases are
   predominantly British and involve only a few American victims they
   will be tried in HONG KONG and the prosecution will be assisted by
   the Americans. Where the cases are entirely American they will, it
   is believed, be tried in SHANGHAI. Mixed cases, predominantly
   American will, it is believed, be tried in YOKOHAMA by American
   Court with British members. (41)

   In order that British prestige may be upheld in CHINA and FORMOSA,
   will you please make every effort to ensure that full publicity is
   given in CHINA & SHANGHAI, and also if possible, in FORMOSA, to
   reports of all trials in HONG KONG of War Crimes committed against
   British subjects in SHANGHAI and FORMOSA? It is also most desirable
   that all reports of trials by American Courts including a British
   member should give prominence to British participation. (42)

Records show that in the matter of the trial of former Hong Kong Governor-General Isogai Rensuke, the British abandoned efforts to secure either a British judge or a prosecutor on the Nanking Military Tribunal trying him because there would arise issues of reciprocity for the Chinese in British trials, which was not acceptable to them in relation to Hong Kong. (43)

According to Hayashi Hirofumi, a Japanese historian specialising in Japanese war crimes, the South East Asia Command was actually joked as being about 'Save English Asian Colonies'. (44) He asserts that Britain had to demonstrate its prestige to Asian peoples and that it was the protector of local people of its colonies in order to rebuild its empire. (45) He states that 'war crimes trials were one of the most important chances to make a display of her prestige'. (46) He too finds examples in the archival files, such as a letter from ME Dening, the Chief Political Adviser to Lord Mountbatten, counselling the Foreign Office that

   [i]f circumstances should arise wherein we recover Malaya and in
   particular Singapore, not by force of arms but by act of surrender,
   then we should to my mind, carry out our reoccupation with the
   maximum degree of efficiency and the maximum display of force. This
   is necessary not because the stigma which attaches to our loss of
   these territories is by no means forgotten, but because we must
   impress upon local inhabitants that we are now possessed of force
   and organisation which were so conspicuously lacking at the time of
   our defeat.... Politically it is vitally important that our return
   to territories occupied for so long by Japanese should take place
   in a manner most calculated to impress the inhabitants with the
   security we are capable of providing. (47)

Hayashi's research reveals that Foreign Secretary Bevin wrote to the Secretary of State for War, advocating action as 'our reputation in Germany and the Far East is certainly dependent to a great extent upon the expedition and efficiency with which these trials are carried through'. (48) Hayashi notes:

   The Treasury Solicitor, who acted as legal adviser to the War
   Office, insisted at a meeting on 16 October 1945 that [in relation
   to Malaya] 'the criminals should be brought back to Malaya on
   account of the important effect on prestige'. (49)

Additionally, the Colonial Office was 'very anxious to see responsible Japanese brought to trial [for atrocities committed in the Gilbert and Ellice Islands] and considered it an opportunity to sustain Empire Prestige'. (50) The Hong Kong trials seem clearly to fall within this pattern.

III THE LEGAL BASIS FOR THE TRIALS

The introductions in successive editions of the British Manual of Military Law affirm that the British had long accepted the existence of laws and customs or usages of war. (51) However, while military discipline and powers of the occupier within an occupied territory were clearly asserted in early editions, this cannot be said for the concept of prosecutions for war crimes, which only appeared in 1914. (52) That having been said, the prosecution of violations of the laws and usages of war--what we today call war crimes--was, by the time of the Second World War, already well established in British military law.

The version of the Manual of Military Law that was relied on for the post Second World War Royal Warrant prosecutions, including in Hong Kong, was the 1939 reprint of the Manual of Military Law 1929 supplemented by the 1936 replacement of ch XIV on The Laws and Usages of War on Land and the 1944 amendment on superior orders. (53) However, the trials, including in Hong Kong, were conducted using physical copies of the Manual of Military Law 1929, which had been reprinted in 1939; the reprint did not include the two amendments referred to above. In other words, the 1939 reprint was not a consolidated document, although the two amendments were British law and were in fact applied in the trials. (54) According to ch XIV of the Manual of Military Law 1929 (as amended), the punishment of war crimes by the enemy's military personnel or civilians could be dealt with 'by military courts or by such courts as the belligerent may determine. In every case, however, there must be a trial before punishment, and the utmost care must be taken to confine the punishment to the actual offender'. (55)

The direct source of law for all British trials in the aftermath of the Second World War, including in Hong Kong, was the Royal Warrant of 18 June 1945, which had annexed to it the Regulations for the Trials of War Criminals ('Regulations Annexed to the Royal Warrant'). The Royal Warrant was adopted before the London Agreement of 8 August 1945, (56) Control Council Law No 10 of 20 December 1945 (57) and General MacArthur's order establishing the IMT at Tokyo. (58) The Royal Warrant authorised the British Army's exercise of jurisdiction over captured enemy personnel suspected of violations of the laws and usages of war. Nevertheless, some of the cases tried in Hong Kong were not to do with the laws of war on land and involved vessels on the high seas (the Lisbon Maru, (59) the Toyoma Maru (60) and the Tone and Behar (61)). To date, the author has not identified files in the archives to explain how this extension of the laws and usages of war on land to the high seas was justified.

The British Army's understanding of the laws and usages of war on land, including war crimes, was to be found in the Manual of Military Law 1929 (as amended). This understanding was deeply rooted in international law--in particular, but not exclusively, in the Hague Convention (IV) respecting the Laws and Customs of War on Land and its annexed Regulations respecting the Laws and Customs of War on Land (collectively, Hague Convention IV and Its Annexed Regulations), (62) and the 1929 Convention relative to the Treatment of Prisoners of War ('1929 POW Convention'). (63) At the Hong Kong war crimes trials, the parties would in fact rely on a range of legal sources. For example, the prosecution in the trial of Lieutenant General Ito Takeo cited the 'Manual of Military Law 1929, ch XIV, para 56(c)', expressly drawing from the Red Cross Convention ch 1 art 1 and the Hague Convention IV and Its Annexed Regulations s 1 ch 1 art 1 condition 1. (64) Although the Manual of Military Law 1929 (as amended) was meant as a guide, the Hong Kong cases show that the parties relied heavily on it as a source of law. (65) For example, the amendment on superior orders in Manual of Military Law 1929 (Amendment No 34 of 1944) was cited as a source of law in several trials. (66) The Manual of Military Law 1929 was specifically cited as source of law for war crimes in the prosecution's opening statement in the trial of Major General Tanaka (67) and as authority for the burden of proof in the trial of Major General Shoji Toshishige. (68)

The procedure is examined in more detail in Part IV of this paper, but in essence, the procedure for Field General Courts Martial, regulated in the Army Act 1926 and the Rules of Procedure for Trials by Court Martial under the Army Act 1926 (69) applied to the extent amended by the Regulations annexed to the Royal Warrant (70) and other secondary legislation, such as the instructions issued by General Headquarters, ALFSEA ('ALFSEA Instruction No 1 (2nd ed)'). (71)

The regime that applied in Hong Kong was an expedited and simplified adversarial procedure, with relaxed rules of evidence, compared to what applied in the civilian system (courts of ordinary jurisdiction). ALFSEA General Headquarters in Singapore was responsible for the investigation and bringing to trial suspected war criminals within British jurisdiction in South East Asia. prosecutors were given files that Singapore felt were sufficiently investigated, and required to go to trial on the strength of that. (72) The General Officer Commanding Land Forces Hong Kong was appointed under warrant by the ALFSEA Commander-in-Chief to convene war crimes courts in Hong Kong and to review and confirm courts sentences. (73) This power was derived from the Regulations Annexed to the Royal Warrant, where senior officers were given the power to convene military courts to hold war crimes trials. (74) For each panel, the Convening Officer would select a lieutenant colonel to serve as Presiding Officer, supported by one major and one captain. The Presiding Officer had to have legal qualifications unless the Convening Officer deemed it unnecessary. (75) The accused were provided with counsel, and most were eventually to have Japanese counsel; they were, however, assisted by British Advisory Officers. (76)

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

The terms of the Royal Warrant and reg 1 of the Regulations Annexed to the Royal Warrant were understated, yet allowed for extraterritorial jurisdiction, including universal jurisdiction. The British war crimes courts in Hong Kong exercised jurisdiction over war crimes, defined as 'a violation of the laws and usages of war committed during any war in which His Majesty has been or may be engaged at any time since the 2nd September, 1939'. (77)

Jurisdiction was therefore not tied to British territory, but rather to the engagement of His Majesty in war, anywhere in the world, and the commission of war crimes in that war. There was nothing on the face of it to limit the crimes to those committed by Germans or Japanese, but the reality is that this was in fact so limited.

The Hong Kong, Kowloon and New Territories cases were brought on the basis of territorial jurisdiction or quasi-territorial jurisdiction. (78) The grounds for the exercise of extraterritorial jurisdiction--over Japan, Formosa, China and on the high seas--were that the crimes were committed against British or Commonwealth citizens (invoking the notion of passive personality jurisdiction). None of the trials were conducted in absentia. Some of the suspects were captured within the Hong Kong command and others were sent to Hong Kong to stand trial from elsewhere in Asia, including occupied Japan. (79)

B Subject Matter Jurisdiction

The British military tribunals in Hong Kong had jurisdiction only over 'violation[s] of the laws and usages of war' committed during any war in which Britain was engaged since 2 September 1939. (80) This unhelpfully terse wording appears to have been a rejection of the listing system originally employed in the Treaty of Versailles, (81) and that was then being discussed for the IMT at Nuremberg to try the leaders of vanquished Germany. Perhaps, as Meron has asserted, '[t]he international legal community had also learned that a Versailles-like catalogue of war crimes was not workable, at least not while international legal norms were still undergoing considerable development'. (82)

The British understanding conveyed in the Manual of Military Law 1929 (as amended) was that the laws of war were the 'rules respecting warfare with which, according to International Law, belligerents and neutrals are bound to comply'. (83) It provided an explanation of what was meant by the concept of 'laws and usages of war':

   The laws of war consist therefore partly of customary rules, which
   have grown up in practice, and partly of written rules, that is,
   rules which have been purposely agreed upon by the powers in
   international treaties. Side by side with these customary and
   written laws of war there are in existence, and are still growing,
   usages concerning warfare. While the laws of war are legally
   binding, usages are not, and the latter can therefore, for
   sufficient reasons, be disregarded by belligerents. Usages have,
   however, a tendency gradually to harden into legal rules of
   warfare, and the greater part of the present laws of war have grown
   up in that way. (84)

The Manual of Military Law 1929 (as amended) divided war crimes--the 'technical expression for such an act of enemy soldiers and enemy civilians as may be visited by punishment or capture of the offenders' (85)--into four broad groups. These were violations of the recognised rules of warfare by members of the armed forces; illegitimate hostilities in arms committed by individuals who are not members of the armed forces; espionage and war treason; and marauding. Specific examples were provided--use of poisoned or otherwise forbidden arms and ammunition; killing of the wounded; refusal of quarter; bombardment of hospitals and other privileged buildings; ill-treatment of POWs; ill-treatment of inhabitants in occupied territory; abuse of the Red Cross flag and badge, etc. (86) The ALFSEA Instruction No 1 (2"a ed), governing the procedure for trials within its area of command, supplemented this and provided further insight into what were considered the main offences constituting war crimes:

1 Shooting and killing without justification.

2 Shooting and killing on the false pretence that the prisoner was escaping.

3 Assault with violence causing death, and other forms of murder or manslaughter.

4 Shooting, wounding with bayonet, torture and unjustified violence.

5 Other forms of ill-treatment causing the infliction of grievous bodily harm.

6 Theft of money and goods.

7 Unjustified imprisonment.

8 Insufficient food, water, clothing.

9 Lack of medical attention.

10 Bad treatment in hospitals.

11 Employment on work having direct connection with the operations of the war, or on unhealthy or dangerous work.

12 Detaining Allied personnel in an area exposed to the fire of the fighting zone.

13 Making use of POWs or civilians as a screen; and such cases as attacks on hospitals or hospital ships, and on merchant ships without making provision for survivors.

14 Interrogation by 'third degree' or other forcible methods. (87)

In line with the acts described in the Manual of Military Law 1929 (as amended) and ALFSEA Instruction No 1 (2nd ed), the Hong Kong cases reveal that the concept of war crimes was used in practice to encompass this same broad range of core acts in armed conflict and occupation such as: unlawful arrest and detention; unlawful killing; torture; cruel, inhuman or degrading treatment; abuse of POWs (ranging from forced labour to poor working conditions to poor conditions of detention, as well as abuse of civilians in internment camps). Consistent with the practice of the time, sexual violence cases were peripheral, although the rape of a number of nurses at St Stephen's Hospital, the Jockey Club and local civilians at Blue Pool Road during the fall of Hong Kong were included in one of the Hong Kong island invasion cases. (88) At this stage of the research process, it is not yet clear why there were no prosecutions of Japanese conduct during the taking of Kowloon and Victoria; there are many reports of murder of civilians, looting, plunder, serious abuse and sexual violence. (89) It is also not yet clear why there were no prosecutions in relation to the maltreatment of civilians interned at the camp at Stanley Prison. (90)

Some of the widespread and systematic abuses that the cases reveal, particularly the conduct of the Kempeitai against civilians, could have been also legitimately tried as crimes against humanity. However, para 6 of ALFSEA Instruction No 1 (2nd ed) indicates the 'crimes against the laws of humanity' should be subsumed within war crimes. The cases also clearly show that the maltreatment of POWs across Hong Kong and Formosa was widespread and systematic, although there is nothing emerging from the files that suggests a genocidal intent behind the abusive conduct of the Japanese.

When discussing the subject matter jurisdiction of the war crimes courts in Hong Kong, it is essential to consider briefly how it was that British law could be applied to Japan and its nationals. The process was undeniably about the victors sitting in judgment on the vanquished, but that does not sufficiently capture the reality of the situation. As observed earlier, the references to the 'laws and usages of war' were to international law in its treaty and customary form (for Lauterpacht, the Manual of Military Law 1929 (as amended) referred to violations of international law, not English municipal law). (91) This is, however, not entirely true, for the Hong Kong trials show, in those instances where law was actually referred to, that the parties relied on the principles and approaches of domestic criminal law, with concepts of murder and manslaughter, causation and others feeding into their understanding of the notion of the war crime in international law. There are examples of counsel citing English precedents, especially Archbold Criminal Pleading, Evidence and Practice. (92) This means that what was actually used in these courts is probably correctly described as a hybrid of international and domestic law. This does not fit in with Lauterpacht's understanding, cited earlier, or with Baxter's interpretation of the British military cases from the Second World War. Baxter argued that the Judge Advocates and legal members, 'with rare exceptions', emphasised the international substance of the proceedings, even declaring distinctions between murder and manslaughter to be irrelevant. (93) This is not apparent in the Hong Kong cases.

In the Hong Kong cases, there was no dispute on the applicability of treaties to which Japan was a party, such as Hague Convention IV of 1907 (94) and the 1929 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field ('1929 Sick and Wounded Convention'). (95) These, in any event, would have applied to Japan as customary international law. (96) It is widely known that Japan was not a party to the 1929 POW Convention, which improved upon some of the earlier conventions to which Japan, the UK and other states had been party (see below). The objections stemmed from a particularly Japanese understanding about POWs. (97) The military honour code called Bushido discouraged soldiers from becoming captive, and urged sacrifice rather than capture:

   To be strong, understand honour and shame. For the honour of your
   native community and your family name, meet their expectations by
   making your best effort. Do not disgrace yourself by becoming a
   prisoner; do not leave behind a name soiled by becoming a prisoner.
   (98)

Furthermore, in 1934 Japan explained that under the 1929 POW Convention, POWs could not be as severely punished as Japanese soldiers, and that this would involve a 'revision of the Japanese Military and Naval Disciplinary Codes to put them on an equal footing, a revision which was undesirable in the interests of discipline'. (99) The IMT at Tokyo observed that one of the reasons for Japan's non-ratification was that

   such ratification would double the range of enemy planes making
   raids on Japan in that the crews could land on Japanese territory
   after completing their mission and be secure in the knowledge that
   they would be treated as prisoners of war. (100)

Nevertheless Japan was bound in treaty law to a number of other relevant conventions affirming many of the same provisions and principles that were in the 1929 POW Convention, and reflected in customary international law. Japan was a party to the 1929 Sick and Wounded Convention, (101) which did in fact apply. (102) Japan was a party to the 1906 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field ('1906 Sick and Wounded Convention'), (103) which was incorporated by reference into the Hague Convention IV and Its Annexed Regulations. (104) The 1906 Sick and Wounded Convention applied as treaty law during the War in Asia, as all the participants were party to it. (105) A critical treaty should have been the Hague Convention IV of 1907 with the Martens Clause, (106) to which Japan was a party. However, the Hague Convention IV and Its Annexed Regulations contained a si omnes clause and did not in fact apply to the War in Asia as treaty law, since China was not a party. (107) It did, however, apply as customary law. (108)

Japan also gave certain formal assurances, via neutral states, about how it would treat Allied POWs. (109) In one instance, the Japanese Government assured the Swiss Foreign Minister that Japan 'observes strictly the Geneva Convention of 27th July 1929, relative to the Red Cross, as a state signatory of that Convention'. (110) The IMT at Tokyo was to hold that these assurances constituted legal obligations: each was a solemn agreement binding the Government of Japan as well as the governments of the other combatants: to apply the provisions of the 1929 POW Convention to POWs and civilian internees alike; to take into consideration the national and racial customs of those prisoners and internees when supplying them with food and clothing as required by the 1929 PO W Convention; and not to force internees to work. (111)

There is no doubt that Japan did have a policy about POWs, and the documentary evidence from the Hong Kong trials indicates that it did not start off by ordering or permitting killings and maltreatment. But, it did start off having a different approach to certain aspects of the generally accepted POW regime. From the cases in the HKWCT Collection, it is clear that Japan did draw conceptually from the Hague Convention IV and Its Annexed Regulations, and the 1929 POW Convention. Japan set up a regime for the creation and administration of camps, the use of labour of POWs and the disciplining of POWs. (112) To take an example, reg 2 of the Hong Kong Administrative Regulations provided that POWs 'shall be treated by the authorities with the spirit of humanity; and their personality shall be respected'. (113) We do not have any comment on this from the Hong Kong courts, but the IMT at Tokyo held that on the surface, the system seemed to be appropriate: 'however, from beginning to end, the customary and conventional rules of war designed to prevent inhumanity were flagrantly disregarded'. (114) It stated further that certain legal changes made by Japan in the area of POWs and civilian internees were not a sign of a change of attitude and did not suffice to secure the enforcement of the laws of war. (115)

The situation was complex. Some of the Japanese witnesses who testified in Hong Kong did raise the issue of the Japanese laws that bound them, including in the matter of how to treat POWs. Colonel Tokunaga, Commandant of all the POW camps in Hong Kong, testified how he had been briefed in Tokyo prior to deployment. He was instructed that the treatment of POWs should be carried out in accordance with international law: he was instructed to 'treat them philanthropically; they should not be ill treated'. (116) Colonel Tokunaga claimed that on arriving in Hong Kong, he instructed his guards that 'POWs should be treated according to the International Law--humanely' (117) and that this instruction was repeated to new staff. (118) He told the Court, under cross-examination, that he instructed his staff 'that POWs should be treated with kindness and fair manner according to International Law ... [a]lthough we are Japanese, I instructed them at that time to treat the POWs with the Japanese philanthropic way, according to the Japanese spirit'. (119) Questioned on the ambiguity and tension between the statements about the Japanese attitude towards POWs and philanthropy, he explained that he meant that 'they should be treated with kindness ... The spirit of kindness does not mean to do nothing against an illegal act'. (120) These assertions were repeated far too frequently and consistently across the cases to be dismissed out of hand as a mere fabrication. Yet, the record of the Hong Kong trials shows the remarkably widespread and consistent abuse of POWs. These examples of assertions of Japanese laws and superior orders reveal that it was not a simple case of a nation that did not recognise the concept of POWs. Japan was, as already noted, a signatory to the leading treaty of 1929, the 1929 Sick and Wounded Convention, where the concept of humane treatment for sick and wounded POWs was enshrined. Neither was it a simple situation of a nation ordering its army to abuse POWs. There remains to be written, in the English language at least, a definitive study of this issue that can answer the perplexing issues of why and how such atrocities happened.

C Personal Jurisdiction

The exercise of war crimes jurisdiction over individuals was occasionally challenged. For example, the defence in the trial of Inouye Kanao cited Wheaton's 'International Law' that 'justice inclines to the view that war crimes are not attributable to individuals'. (121) However, the only case where jurisdiction was denied involved a conviction that was set aside and the accused sent for retrial in the civilian courts for treason because the accused, although of Japanese ethnicity, was born in Canada. (122)

The unrestricted personal jurisdiction of the applicable law permitted the bringing of charges against members of the Imperial Japanese Army, including the Kempeitai, the Imperial Japanese Navy and civilians who worked with them, such as interpreters, merchant seamen, medical unit staff and employees of a private Japanese company that used POWs as forced labour. Jurisdiction was exercised only over Japanese personnel, who included some Formosans (Formosa was, during the Second World War, a Japanese overseas territory). Commonwealth and British nationals who committed similar acts, for example, those local Hong Kong detectives who assisted the Kempeitai in torture, were tried for treason in the civilian courts (see later discussion). All the cases were intrinsically linked to the Second World War, or the period of Japanese occupation. Most cases involved just one location, although one case tracked the activities of an accused across several territorial jurisdictions--Hong Kong, China and the high seas. (123)

One hundred and twenty three men were eventually tried for war crimes by the British courts in Hong Kong. The Hong Kong Annual Report of 1946 shows that in July 1946, of the 10 000 Japanese captured in Hong Kong after the surrender, 239 were held as suspected war criminals. (124) Japanese Surrendered Personnel suspected of war crimes were sent to Hong Kong from across Asia. For example, towards the end of 1946, 58 Japanese and Formosans were sent to stand trial in relation to atrocities against POWs in Formosa, and 10 Japanese were sent from Japan to Hong Kong in relation to crimes committed in Shanghai against British nationals. (125) During 1947, 55 Japanese located in China were brought to Hong Kong, and 92 detained Japanese were repatriated. (126) This international collaboration in the investigation and prosecution of war crimes was part of the scheme worked out during the war years, described earlier in this paper. While 123 persons went on trial, the rest were eventually repatriated as there was insufficient evidence. (127)

D Temporal Jurisdiction

The Preamble to the Royal Warrant and art 1 spoke of any war that the King had 'been or may be engaged at any time after the 2nd September, 1939'. (128) An issue raised in three of the cases was when His Majesty stopped being 'engaged in war' with Japan. The three cases--the execution of a downed British pilot in Japan, (129) the killing of local Chinese civilians at Lantau Island's Silver Mine Bay (130) and the killing of local Chinese civilians at the Tsun Wan Gendarmerie (131)--involved killings that took place before the formal surrender but after the capitulation of the Emperor.

Did His Majesty stop being 'engaged in war' with Japan after the capitulation following the atomic bombings of Hiroshima and Nagasaki (14 August 1945), after the formal surrender of Japan (2 September 1945), or when the San Francisco Agreement (132) was inked (8 September 1951)? What about occupation in customary law and the Hague Convention IV and its annexed Regulations--how did that relate to being 'at war', when the concept of occupation relies on the assertion of control by the conqueror over the contested territory and not being 'at war'? In the trial of Ito Junichi, the prosecution argued that although the killings in question took place on 17 August 1945

   no question arises as to the Court's jurisdiction to hear a case
   describing events after the surrender because the Royal Warrants
   have provided for Courts to be set up to try suspects for offences
   committed in any war in which Great Britain finds herself engaged
   in since September 1939; and the surrender, though a cessation of
   hostilities, does not mean legally an end of the War. That must be
   produced by an enactment specifically revoking the one which laid
   down that a state of war existed. (133)

The defence in the Silver Mine Bay trial argued that if a state of war no longer existed, which the defence suggested the prosecution was implying, 'it cannot also be true that the accused persons committed crimes in violation of the laws and usages of war' since a war crime can only be committed during a war. (134)

In the three cases noted above, full trials were held, leading to verdicts. The courts obviously took jurisdiction. From this, one can surmise that the panels took the view of the prosecution in the trial of Ito Junichi, that the state of armed conflict did not cease simply because the fighting stopped, whether from the Emperor's capitulation on 14 August 1945, after the formal surrender of 2 September 1945. (135)

E Procedure

The Royal Warrant procedure in the Second World War trials is described in the UNWCC's Law Reports of Trials of War Criminals (136) and their History of the United Nations War Crimes Commission, (137) as well as by Rogers in his 1990 International and Comparative Law Quarterly article. (138) The Royal Warrant was amended twice--the first amendment allowed joint indictment of a group of persons (139) and the second allowed for in absentia trials, provided the Court was satisfied that this would not lead to injustice to the accused. (140) British Ordinance No 47 of 30 August 1946 (141) made Control Council Law No 10--with its crimes against humanity provisions--enforceable in the British zone in Control Council administered Europe. (142) However, the Royal Warrant trials in Asia remained simply war crimes trials, although para 6 of the ALSEA Instruction No 1 (2nd ed) indicates that the concept included crimes against humanity.

Evidentiary rules in military proceedings were the same as in the civilian system, the so-called 'courts of ordinary criminal jurisdiction in England', which followed the common law. (143) The Manual of Military Law 1929 (as amended) contained a fine chapter on the law of evidence. However, for the war crimes trials, such as in Hong Kong, the rules were relaxed. The ALFSEA Instruction No 1 (2nd ed) that was used in Hong Kong and elsewhere in the ALFSEA area of command emphasised the summary nature of these adversarial proceedings, and required that this be 'borne in mind by all concerned, to the end that justice be administered promptly and efficiently'. (144) The authority for such relaxation lies in the Regulations Annexed to the Royal Warrant, which contained rules such as the following:

   At any hearing before a Military Court convened under these
   regulations the Court may take into consideration any oral
   statement or any document appearing on the face of it to be
   authentic, provided the statement or document appears to the Court
   to be of assistance in proving or disproving the charge
   notwithstanding that such statement or document would not be
   admissible as evidence in proceedings before a Field General
   Court-Martial, and without prejudice to the generality of the
   foregoing in particular ... (145)

Hearsay statements, so famously discredited in the English law of evidence, could now be admissible. Following on from this, ALFSEA Instruction No 1 (2nd ed) provided the following guidance to investigators on the nature of evidence:

   The regulations for the trial of War Criminals permit in certain
   cases the use of hearsay evidence, and Investigating Officers may
   accept any statements which may be likely to assist in any
   subsequent investigation, but the statement should make it clear
   whether the witness is speaking of matters which he said or heard
   himself, or of matters which he has been told and, if the latter,
   the source of his information. (146)

These would have a great impact on the testimony given during trials. For example, during the trial of Major General Tanaka, the prosecution objected to the questioning of Captain Ushiyama Sukeo by defence counsel on something that he did not have firsthand knowledge of. The Presiding Officer overruled the objection, citing how reg 8(I) of the Regulations Annexed to the Royal Warrant 'allowed both sides considerable latitude in producing evidence, which in normal Courts will be regarded as hearsay, and it is for the Court to estimate the value, if any, of such evidence'. (147) Regulation 8 also very notably loosened up the rules on documentary evidence. It contained a provision that the Court could accept, 'as evidence of the facts therein stated, any depositions or any record of any military Court of Inquiry or (any summary) of any examination made by any officer detailed for the purpose by any military authority'. (148) The Hong Kong cases show that affidavits were readily admitted in lieu of oral testimony, and that documents were easy to admit as evidence. With affidavit evidence, the defence was denied the right to cross-examine, and this is obviously a matter that goes to the fairness of the proceedings. Even more striking was the adoption of a rule allowing for a presumption of reliability of Allied military personnel affidavits; these were not reciprocated for the defence. (149)

In terms of witness protection, it is notable that an amendment to the ALFSEA Instruction No 1 (2nd ed) provided for the presidents of war crimes courts 'dealing with cases in which a named victim was of British nationality to request reporters at the trial to suppress the names of British victims in order to avoid unnecessary distress to their families' and that charge sheets naming British victims would not be released to the press without express instructions from ALFSEA headquarters. (150) It will of course be immediately apparent that this did not apply across the board, most notably to locals. The applicable law permitted closed sessions 'in the national interest or in the interests of justice, or for the effective prosecution of war crimes generally, or otherwise', (151) and the public were sometimes excluded, for example during the testimony of British victims of sexual violence during the fall of Hong Kong. (152) This facility does not appear to have been extended to the local women who testified in open court. (153)

On arraignment, accused persons were required to enter a plea, in accordance with detailed rules set out in rr 32 and 35(A) of the Rules of Procedure for Trials by Court Martial under the Army Act 1926. The guilty plea procedure was laid out in rr 35(B), 37(B)-(F) of the Rules of Procedure for Trials by Court Martial under the Army Act 1926. This guilty plea procedure was an issue in the first trial of Sergeant Major Ito Junichi, where he pleaded guilty but the Court proceeded to conduct a hearing that was not consistent with the prescribed procedure. (154) In this case, the accused asserted that his conduct was defensible, or at least justified, by raising two claims: that the taking of life was legitimate or lawful, and that he was following superior orders. In addition to procedural flaws, the Judge Advocate observed that it must have been apparent, at an early stage of the proceedings, that the defence was suggesting that the accused received orders to execute prisoners and the Court should have reversed the guilty plea to not guilty at that point, and not right at the end as was done. (155) The accused was later retried on the basis of a not guilty plea and was convicted. (156) Another case with a guilty plea was that of Sergeant Major Yokohata Toshiro. (157) The Court rejected Toshiro's plea after it heard his character witness, Major Albert Edward Kyte. Instead, the proceedings continued on the normal basis of a not guilty plea. Major Kyte, the Officer Commanding British Minor War Crimes Liaison Section in Tokyo, testified that his experience of interrogating the accused was 'the first time that [he] ever interrogated a Japanese kempei who was honest, frank and apparently regretted his actions'. (158) The Court gave no reason for rejecting the guilty plea. In his petition against the conviction and the 15 year sentence imposed, (159) the accused argued that despite making a guilty plea, and showing genuine remorse and helpfulness (confirmed by the testimony of Major Kyte), this was rejected and he received an unduly severe sentence that did not take that into account. These cases could have contributed to the evolution of modern international criminal procedure had they been available. (160)

There was no 'appeal' as we know it today. Nevertheless, petitions to the Confirming Officer (Commander of Land Forces in Hong Kong) to aid his conduct of the obligatory review were possible. The Confirming Officer was advised by Judge Advocates in Singapore, who could only conduct file reviews as they were not on hand to observe or provide advice during the proceedings. The Judge Advocates made recommendations for confirmation, rejection or amendment. In a 2011 interview with the author, Major Murray Ormsby, a former military judge and prosecutor involved with the Hong Kong trials, explained that there was no need for Judge Advocates to be present or advising anyone during the trial or in summing up, because the Presiding Officer in Hong Kong was always a lawyer. (161)

F Superior Orders

The Hong Kong cases abound with examples of subordinates claiming that they were under orders and obliged to comply with those orders. This was not just amongst the lower ranks, but also applied to officers, such as the colonels in charge of POW camps, who claimed they conducted themselves in accordance with Japanese law and the orders of their superiors.

These trials were on the frontline of the superior orders controversy and it is indeed a shame that we do not know the views of the Court through reasoned decisions. It is of significant interest to note that former judge and prosecutor, Major Ormsby, rigorously decried the fairness of the concept as applied to the Japanese (he had, at the time of the trials, argued for the doctrine, as part of his task as a prosecutor). (162) It is of course notorious how, during the war, the British changed their provision on superior orders. They had entered the war with a military manual containing a recently reaffirmed statement on superior orders that

   [i]t is important, however, to note that members of the armed
   forces who commit such violations of the recognised rules of
   warfare as are ordered by their Government or by their commander
   are not war criminals and cannot therefore be punished by the
   enemy. He may punish the officials or commanders responsible for
   such orders if they fall into his hands, but otherwise he may only
   resort to the other means of obtaining redress which are dealt with
   in this chapter. (163)

Paragraph 443 had been introduced into the Manual of Military Law 1914 and held through the Manual of Military Law 1929 passing intact through the replacement of Chapter XIV in 1936. (164) This was consistent with Oppenheim's influential treatise on international law, which had stated the rule in international law as being absolute:

   In case members of forces commit violations ordered by their
   commanders, the members may not be punished, for the commanders are
   alone responsible, and the latter may, therefore, be punished as
   war criminals on their capture by the enemy. (165)

Correspondence dated 1944 from Sir Henry MacGeagh (Judge Advocate General) to Sir David Maxwell Fyfe (Solicitor-General) shows that it was replaced to bring it up to date with the different position taken by the then leading international lawyer of the day, Professor Lauterpacht, and in light of the Soviet trials taking place in Kharkov. (166)

The position became one of no defence:

   The fact that a rule of warfare has been violated in pursuance of
   an order of the belligerent Government or of an individual
   belligerent commander does not deprive the act in question of its
   character as a war crime; neither does it, in principle, confer
   upon the perpetrator immunity from punishment by the injured
   belligerent. Undoubtedly, a court confronted with the plea of
   superior orders adduced in justification of a war crime is bound to
   take into consideration the fact that obedience to military orders,
   not obviously unlawful, is the duty of every member of the armed
   forces and that the latter cannot, in conditions of war discipline,
   be expected to weigh scrupulously the legal merits of the order
   received. The question, however, is governed by the major principle
   that members of the armed forces are bound to obey lawful orders
   only and that they cannot therefore escape liability if, in
   obedience to a command, they commit acts which both violate
   unchallenged rules of warfare and outrage the general sentiment of
   humanity. (167)

This new position of 'no defence of superior orders' was not uncontroversial even in the UK, (168) but came to be reflected in the statutes of the IMT at Nuremberg and IMT at Tokyo as well as in Control Council Law No 10. (169) Vanquished Germany (170) and Japan (171) were held to the standard now claimed to be reflective of international law. (172) In the trial of Colonel Nakano Junichi and two others, defence counsel, in closing, eloquently argued that while the British changed their law in 1944:

   It is a thing so well known as to come under the heading of matters
   of which Judicial Notice is taken and which need not be proved,
   that in the Japanese army, the subordinates were bound absolutely
   and unconditionally to obey superior orders. This latter principle
   was well-known to be guiding rule [sic] covering every part of the
   Japanese army long before the war and during the war. (173)

He criticised the newly adopted British position, pointing out that the law only changed in 1944, with the implication that whatever was done before 1944 was in accordance with the British law of the time. (174) The defence counsel also quoted from the judgment of the IMT at Nuremberg, (175) that ex post facto punishment is abhorrent to the law of all civilised nations, and argued that the correct law to apply should be that which existed prior to 1944. (176) A more nuanced argument was put forward by the defence in the Silver Mine Bay trial. There, counsel admitted that international practice, if not international law, had changed in the conceptualisation of superior orders, but the fact of there being such orders, exacerbated by the reality of the rigid Japanese system and the backgrounds of the accused, warranted understanding from the Court. (177)

The cases in the HKWCT Collection record numerous in-court explanations of how, under the rigid Japanese military system, subordinates had no choice but to obey orders. Major Ando Tadashi was a Japanese officer from the Formosan Army, called as a prosecution witness in the trial of Colonel Tokunaga Isao and four others to provide expert evidence about the structure and operations of the Japanese Army. He testified how in the Japanese Army, orders are to be obeyed: '[I]f the order comes from the direct superior the subordinate should obey that order because the superior officer knows about the legality of the order. In special cases the subordinate can express his opinion in a roundabout way'. (178) He affirmed that any order given by an officer to any subordinate, whether he is a non-commissioned officer or soldier, must be obeyed at once without question. (179) Similarly, counsel for Major Uete Taichi and six members of the accused argued in closing that

   [i]n the Japanese Army the orders of a superior are absolute and
   are considered as supreme. His subordinates are not allowed to
   argue whether his orders are right or wrong even though it is a
   matter which is against their will. They could merely express their
   opinion, even in such cases it is very rare their opinion would be
   admitted. Therefore, the subordinates usually must obey the orders
   automatically and blindly. (180)

Consistent with the explanation given by Kita, (181) it seems the Japanese accused did not regard themselves as criminally culpable if they complied with orders, ie they continued to view superior orders as a defence to their actions. For example, Captain Mayazumi Haruo, the Captain of the destroyer Tone, pleaded not guilty although he acknowledged his critical--and unwilling--role in the killings of the survivors of the Behar. He testified about how he attempted to have the order to kill the survivors changed. As he explained in his petition against sentencing:

   I did however try my very best in asking that the order be changed.
   There was no alternative case open to me, for in the Japanese Navy
   and Army it was impossible to appeal to any person other than the
   superior Officer who issued the orders. If I had not obeyed the
   order I would have laid myself open for punishment for
   insubordination. I could not help obeying the orders in the long
   run. Moreover, I expressed my opinion which was an unprecedented
   act in the Japanese Navy ... I acted against my conscience, like a
   machine forced by the strong will of another officer. (182)

From the cases, it seems that duress appeared as part of the superior-subordinate relationship--there were no 'life or death' situations. The penalties mentioned by witnesses for disobeying orders were disciplinary in nature. There seems not to have been pressure going beyond that which is implicit in a superior-subordinate relationship in the Japanese Army. For example, Major General Tanaka said that Japanese troops were trained to obey orders and that if a soldier disobeyed an order, he would be charged with mutiny or manslaughter under the Army Penal Code. (183) Colonel Tokunaga, Commandant of all POW camps in Hong Kong, raised a cultural consideration for the obeying of unlawful orders. He testified about the killing of four recaptured Canadian POWs who had escaped from North Point camp during a typhoon on or around 19 August 1942. (184) After being recaptured, they were subject to serious abuse, and were executed. Colonel Tokunaga claimed that this was further to the order of the Chief of Staff, Major General Arisue Yadoru. Colonel Tokunaga explained the circumstances of this order and why he had to obey. Repeated incidences of escaping POWs had resulted in the Governor-General of the territory, his superior, becoming 'very indignant'. (185) The POWs themselves were subjected to increasingly severe treatment with every escape attempt. Colonel Tokunaga claimed that each time POWs escaped, those guarding the POWs were also 'reprimanded' or 'punished'. (186) There was a sense that if POWs escaped, there would be 'loss of face' for many people, from the POW camp staff to the Governor-General. (187) Colonel Tokunaga himself was 'reprimanded' after each escape, and 'punished' after the fourth escape attempt. (188) It was apparently Major General Arisue who ordered that the recaptured POWs be executed. Colonel Tokunaga claimed that he 'thought at that time that if these four escapees were executed without trial, it would cause trouble later'. (189) He claimed to have expressed concerns about this course of action vis-a-vis the applicable international law. But when his superior dismissed them, he went ahead. Thus, it was fear of 'loss of face', rather than any fear for his life, that led the Colonel to pass on an order that he believed to be unlawful, resulting in the execution of the Canadians.

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