Hong Kong's War Crimes Trials
By Suzannah Linton
The roots of the prosecution of atrocities arising out of World War II can be seen in a 7 October 1942 declaration by US President Roosevelt that “I now declare it to be the intention of this Government that the successful close of the war shall include provision for the surrender to the United Nations of war criminals”.1
On 17 December 1942, the Governments of Belgium, Czechoslovakia, Greece, Luxemberg, the Netherlands, Norway, Poland, the USA, the UK, the USSR, Yugoslavia, and the French National Committee, issued a declaration condemning German atrocities against the Jews and re-affirming 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”.2 Mr. Anthony Eden, the Secretary of State for Foreign Affairs, explained that “I 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.”3
This move towards criminal justice was not uncontested, but was further elaborated on in the 1943 Moscow Declaration, where the United Kingdom, the USA and the USSR declared their policy, that 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 dome 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” . This was “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”.4 This extended to the Far East, to cover the Japanese.5
In October 1943, a United Nations War Crimes Commission was set up in London to collect lists of criminals, record available supporting proof, and make recommendations as to the tribunals to try and the procedure for trying such criminals.6 In May 1944, a Sub-Commission for the Far East was set up in Chungking, China, to gather information about Japanese crimes in Asia.7 It was composed of representatives from Australia, Belgium, China, Czechoslovakia, France, India, Luxembourg, the Netherlands, Poland, the United Kingdom and the United States.8 The Chinese delegate, Dr. Wang Chung Hui, Secretary-General of the Supreme National Defense Council of China, was elected its first chairman.9
As the policy solidified, the Allies settled upon the idea of a military tribunal for the leaders, and for the remaining suspects to be brought before occupation courts or sent back for trial under the provisions of the Moscow Declaration, to the countries where they committed the crimes. 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 to try them in Germany (or wherever else was appropriate)”.10 The British attitude towards the essential elements of a criminal trial is revealed in the following comments to the USA, concerning a possible trial of Adolf Hitler: “He, of course, must have in such a trial all the rights properly conceded to an accused person. He must be defended if he wishes, by counsel, and he must call any relevant evidence. According to British ideas, at any rate, his defence could not be forcibly shut down or limited because it involves a great expenditure of time. There is nothing upon which British opinion is more sensitive in the realm of criminal procedure than the suspicion that an accused person-whatever the depths of his crime-has been denied his full defence.”11
The prosecution of the laws and usages of war, or war crimes, was, by the time of the Second World War, already well established in British military law. Field General Courts Martial may be convened during wartime to deal with crimes committed against the laws or usages of war. The laws and usages of war were the subject of a lengthy explanatory chapter in the Manual of Military Law 1929, which drew from international law, in particular but not exclusively from, the Regulations annexed to Hague Convention IV of 1907.12 The direct source of law for all British trials in the aftermath of World War II, including the Hong Kong trials, was the Royal Warrant of 18 June 1945, including the annexed Regulations for the Trials of War Criminals.13 British military courts had jurisdiction over all suspected war criminals within the command of the particular convening officer, irrespective of where the crimes had been committed.14 In essence, the procedure for Field General Courts Martial, regulated in the Army Act 1926 and its Rules of Procedure 1926 would apply15, to the extent amended by the Regulations annexed to the Royal Warrant16 and other secondary legislation adopted such as the two Instructions issued by General Headquarters, Allied Land Forces South East Asia (ALFSEA).17 The basic procedure for general courts martial was explained in the Manual of Military Law 1929 – it was a simplified procedure, with relaxed rules of evidence, compared to what applied in the civilian system.
In relation to the war in Asia, the United Kingdom declared war on Japan on 8 December 1941, the day after it attacked Pearl Harbour and certain Western territories in Asia such as Malaya.18 After a short conflict lasting some 17 days, Hong Kong fell to Japan on 25 December 194119. Following the dropping of atomic bombs on Hiroshima and Nagasaki, the Emperor of Japan capitulated on 14 August 1945.20 An 11 man Japanese delegation signed a formal Instrument of Surrender on 2 September 1945 on board the USS Missouri in Tokyo Bay.21 In surrendering, the Japanese agreed to the Potsdam Declaration, which included the statement of the Allies that: “We do not intend that the Japanese shall 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” (Para. 10).22 The International Military Tribunal in Tokyo was established on 19 January 1946 by General McArthur, as Supreme Commander of the Allied forces in the Far East. Further to the reasssertion of British control over Hong Kong with the arrival of Rear Admiral Harcourt,24 an interim military administration was established on 1 September 1945, giving the Commander in Chief of the liberating forces full judicial, legislative and executive powers (the Japanese only formally surrendered on 16 September 1945).25
In July 1946, of the 10,000 Japanese captured in Hong Kong after the surrender, 239 were held as suspected war criminals.26 Some were repatriated as there was insufficient evidence, and others 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 Prisoners-of-War in Formosa, and 10 Japanese had been sent from Japan to Hong Kong in relation to crimes committed in Shanghai against British nationals).27 During 1947, 55 Japanese were located in China and brought to Hong Kong, and 92 detained Japanese were repatriated.28
The Commander of Land Forces Hong Kong drew from the Royal Warrant to establish a total of 4 British war crimes courts in Hong Kong, which dealt with cases from across Hong Kong, Kowloon and the New Territories, and also from Formosa (Taiwan), China (Waichow and Shanghai), Japan and on the High Seas. These courts operated under ALFSEA supervision, although the final say in each case lay with the Commander of Land Forces Hong Kong. In him lay the power to confirm, or not to confirm, any convictions and sentences imposed.
The British War Crimes Courts in Hong Kong exercised jurisdiction over war crimes, meaning “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” (Article 1). The grounds for exercise of personal jurisdiction appear to have been because the crimes were committed against British or Commonwealth citizens (passive personality jurisdiction) or the suspects were captured within the Hong Kong command (universal jurisdiction). The subject matter spanned war crimes committed during the fall of Hong Kong, during the occupation and in the period after the capitulation following the nuclear bombings of Hiroshima and Nagasaki, but before the formal surrender. They included killings of hors de combat, abuses in prisoner-of-war camps, abuse and murder of civilians during the military occupation, forced labour and offences on the High Seas.
The first trial, concerning the Silver Mine Bay Massacre on Lantau Island, began on 28 March 1946. The last judgement, in the matter of detainee abuses in Shanghai, was promulgated on 18 February 1949 having been passed on 20 December 1948. There were a total of 46 British war crimes trials in Hong Kong, of 123 individuals. Of the 46 judgements issued, 44 were confirmed against 108 individuals, with 14 acquittals. 2 judgements were not confirmed: there was one retrial following non-confirmation of the judgement (Ito Juniichi), and one judgement was not confirmed but transferred to the Supreme Court (Innouye Kanao). The following are further statistics that emerge from the HKWCT Collection.
WHO THE ACCUSED WERE
Note: The first trial and retrial of ITO are counted as one entry; KANAO’S first trial is included but not his treason trial.
OVERVIEW OF THE GEOGRAPHICAL SCOPE OF THE CHARGES (AS PER INDICTMENTS)
|Total number of Charges that were tried:||93 Charges|
|No. of Charges relating to Hong Kong:||57|
|No. of Charges relating to Taiwan(Formosa):||25|
|No. of Charges relating to China:||6|
|No. of Charges relating to Japan:||1|
|No. of Charges relating to the High Seas:||4|
GEOGRAPHICAL BREAKDOWN OF THE HONG KONG CASES (BY CHARGES IN THE INDICTMENT)
|Total number of Hong Kong Charges:||57 Charges|
|Hong Kong (no specific location):||15|
|Hong Kong Island:||16|
BREAKDOWN OF THE HONG KONG CASES BY ACCUSED
|Japanese Army during the invasion:||3|
|Japanese Army-run POW camps:||3|
|Civilians (including interpreters and medics):||3|
BREAKDOWN OF THE FORMOSA CASES BY LOCATION (BY CHARGES IN THE INDICTMENT)
|Total number of Taiwan (Formosa) Charges:||25 Charges|
DATA ON COUNSEL
|PROSECUTING COUNSEL||DEFENCE TEAMS [INCLUDES BRITISH ADVISORY OFFICERS]|
|Captain (Legal Section)||2||Lieutenants||5|
|Major (Advocate/Bar)||18||Captain (Legal Section)||1|
|Major (Legal Section)||6||Japanese Doctor Of Law||3|
|Major (Not Specified)||13||Japanese University Professor||1|
|Japanese Judge Advocate||1|
|Former Judge, Military Court||1|
THE SENTENCES THAT WERE IMPOSED
|Before confirmation||After confirmation/remittance|
|Death Penalty||24||Death Penalty||21|
|Life Imprisonment||1||Life Imprisonment||2|
|20 years||4||20 years||5|
|15 years||7||15 years||7|
|13 years||1||13 years||1|
|12 years||6||12 years||6|
|11 years||1||11 years||1|
|10 years||8||10 years||8|
|8 years||8||8 years||8|
|7 years||7||7 years||7|
|6 years||3||6 years||2|
|5 years||5||5 years||5|
|4 years||4||4 years||5|
|3 years||8||3 years||7|
|2 years||10||2 years||10|
|18 months||4||18 months||4|
|1 year||7||1 year||8|
|6 months||1||6 months||1|
|*The total number is reduced from 123 to 122. This is because the judgment issued after the War Crimes trial of KANAO, a Canadian Interpreter, was not confirmed; his case was transferred to the Hong Kong Supreme Court for trial for the crime of treason. The retrial and death penalty imposed on ITO is included, but not his original judgement, which was not confirmed.|
Please note that for the convenience and interest of readers, hyperlinks to external sources – mainly old film footage - have been embedded in the text. This does not, however, equate with support for the accuracy of what is depicted or stated therein.
1‘Statement of the President of the United States, released to the press by the White House, 7 October 1942, annexed to the Memorandum to President Roosevelt from the Secretaries of State and War and the Attorney General, 22 January 1945’ in the Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials: London, (United States Government Printing Office, 1945). Back to text.
2 ‘Inter-Allied Proclamation’ (17 December 1942) as reported by Mr. Anthony Eden, Secretary of State for Foreign Affairs to the House of Commons. See Hansard, HC Deb 17 December 1942, vol. 385, cols 2082-7. Back to text.
3 Hansard, HC Deb 17 December 1942, vol 385, cols 2082-7. Back to text.
4 Declaration of Moscow (adopted 1 November 1943 (sometimes dated 30 October) 3 Bevans 816 (Annex 10 at 834), 9 Dept. St. Bull. 310 (No. 228, 6 November 1943. There were actually four declarations, all arising out of the Conference of Foreign Ministers held in Moscow from 19-30 October 1943. China attended and joined in the general declaration, which included the commitment to set up an international organisation which eventually become today’s United Nations. Back to text.
5 See the Joint Declaration on Punishment for War Crimes (London, 13 January 1942) (Cited in ME Bathurst, infra.), which referred not just to Germany but also to “Associates of the Reich and in certain countries, by the accomplices of the occupying power” and the resolution of the States present “to see to it, in a spirit of international solidarity, that (a) those guilty or responsible, whatever their nationality, are sought out handed over to justice and judged, and (b) that the sentences pronounced are carried out”. China attended this meeting, and later accepted the Declaration by way of note. At the Cairo Conference (22-26 November 1943), U.S. President Franklin Roosevelt, British Prime Minister Winston Churchill, and Generalissimo Chiang Kai-shek of China agreed a joint declaration that pledged, inter alia, the continuation of the war against Japan until she surrendered unconditionally, foreswore territorial ambitions, return of territories and eventual independence for Korea. It did not mention prosecutions. See ME Bathurst, ‘The United Nations War Crimes Commission’ (1945) 39 American Journal of International Law 565-570. Back to text.
6 See History of the United Nations War Crimes Commission and the Development of the Laws of War (H.M.S.O., 1948). Back to text.
7 ME Bathurst, supra at 5, at 570. Back to text.
8 History of the United Nations War Crimes Commission and the Development of the Laws of War, supra note 6, at 130. Back to text.
9 Id. Back to text.
10 War Cabinet 152(44) on 21 November 1944, (CAB65/44, 66/57), cited in Hayashi Hirofumi, British War Crimes Trials of Japanese 31 Nature-People-Society: Science and the Humanities (July 2001) <http://www32.ocn.ne.jp/~modernh/eng08.htm#_ednref8> accessed 10 December 2010. Back to text.
11 ‘Aide-Memoire from the United Kingdom to the United States of America, 23 April 1945’ in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials: London, (United States Government Printing Office 1945). Back to text.
12 ‘Chapter XIV: The Laws and Usages of War on Land’ in Manual of Military Law (7th edn., Command of the Army Council 1929) 270-412. See also Hague Convention (IV) respecting Laws and Customs of War on Land (adopted 18 October 1907, entered into force Jan. 26, 1910) 36 Stat. 2277, 1 Bevans 631, 205 CTS 277. Back to text.
14 History of the United Nations War Crimes Commission and the Development of the Laws of War, supra note 6, at 463. Back to text.
15 Army Act 1926, 44 & 45 Vict. C. 58 reprinted in Manual of Military Law 1929, supra note 12, at 426-610; Rules of Procedure 1926(as amended 31 December 1928),reprinted in Manual of Military Law 1929, ibid., at 611-765. Back to text.
16 There were several amendments to those Regulations: Army Order 127 of 1945; Army Order 8 of 1946; Army Order 24 of 1946; Army Order 108 of 1947; Army Order 116 of 1949. Back to text.
17 Allied Land Force South East Asia, War Crimes Instruction No.1 & No.2 (2nd Edition) (United Kingdom National Archives, WO 203/2080; WO 203/6092). Back to text.
18 For a recording of Prime Minister Winston Churchill’s announcement on 8 December 1941, see ‘Winston Churchill Speech "Japan Had Attacked The United States" 8th December 1941 (Full Speech)’ (3 September 2009) <http://www.youtube.com/watch?v=IxoLatIJrPk> accessed 10 December 2010. For a news report by Castle Films on the attack on Pearl Harbour, see ‘Pearl Harbor Attack News Report’ (22 May 2008) <http://www.youtube.com/watch?v=jvYhQKn5hlE> accessed 10 December 2010. Back to text.
20 An Imperial Rescript(Official Translation), with seal affixed on the 4th day of the 8th month of the 20th Year of Showa (TN 14 August 1945) Doc No 24400 (United Kingdom National Archives, WO 235/1021)
For the videos that are hyperlinked, see BBC Worldwide, ‘US troops preparing to drop the atomic bomb on Hiroshima’ (24 July 2007) <http://www.youtube.com/watch?v=A0eHCytkcHg> accessed 10 December 2010 and BBC Worldwide, ‘Atomic bombing of Nagasaki’ (24 July 2007) <http://www.youtube.com/watch?v=ncq_Wye43TM> accessed 10 December 2010. Back to text.
21 See ‘Instrument of Surrender’ (2 September 1945) <http://www.archives.gov/exhibits/featured_documents/japanese_surrender_document/> accessed 10 December 2010; ‘Japan Surrender’ (14 August 2007) <http://www.youtube.com/watch?v=LBSZh385Em8> accessed 10 December 2010. Back to text.
22 On 26 July 1945, the Potsdam Proclamation Defining the Terms for the Japanese Surrender was made by U.S. President Harry Truman, British Prime Minister Winston Churchill, and President Chiang Kai-shek of the Republic of China (the USSR’s Joseph Stalin attended but did not sign the Declaration as the USSR did not enter the war against Japan until 8 August 1945). Back to text.
23 Special Proclamation: Establishment of an International Military Tribunal for the Far East (adopted 19 January 1946, amended 26 April 1946) TIAS No. 1589, 4 Bevans 20. Back to text.
24 See Memorandum of Agreements Relative to Japanese Surrender at Hong Kong (Hong Kong Public Record Office, File No. HKRS 163-1-214, Undated) Back to text.
25 ‘Declaration’ (By Rear Admiral C.H.J. Harcourt, H.M.S. Indomitable at Hong Kong, 1 September 1945) 1 Hong Kong Government Gazette, New Series (1 September 1945). Back to text.
26 Hong Kong Annual Report (Hong Kong Government Printer 1946) 72. Back to text.
27 Ibid. Back to text.
28 Hong Kong Annual Report (Hong Kong Government Printer 1947) 94. Back to text.