WO235/1021

WO235/1021

“COMMITTING A WAR CRIME, in that they, at ICHINOMIYA, JAPAN, on or about the 15 August 1945, the accused Colonel TAMURA Teiichi, as Commander of the 426th Regiment Infantry Regiment, the accused Major HIRANO Noboru as an officer on the Staff of the 147th Infantry Division, and the accused Captain FUJINO Masayo, as an Officer of the afore said 426th Regiment Infantry Regiment were, in violation of the laws and usages of war, together concerned in the killing of one FRED HOCKLEY, a Sub-Lieutenant of the Royal Naval Volunteer Reserve”.

WO235/1021

Col. Tamura Teiichi (D1)

Major Hirano Noboru (D2)

Capt. Fujino Nasazo (D3)

Military Court for the Trial of War Criminals No. 5

“COMMITTING A WAR CRIME, in that they, at ICHINOMIYA, JAPAN, on or about the 15 August 1945, the accused Colonel TAMURA Teiichi, as Commander of the 426th Regiment Infantry Regiment, the accused Major HIRANO Noboru as an officer on the Staff of the 147th Infantry Division, and the accused Captain FUJINO Masayo, as an Officer of the afore said 426th Regiment Infantry Regiment were, in violation of the laws and usages of war, together concerned in the killing of one FRED HOCKLEY, a Sub-Lieutenant of the Royal Naval Volunteer Reserve”.

Sub Lt. Fred Hockley was a pilot who set out on a sortie from the aircraft carrier HMS Indefatigable on the morning of 15 August 1945. He was forced to bale out over Japanese territory. He landed uninjured at Chiba-Jen. He was captured by members of a civil defence unit, and turned over to the 426th Regiment, a part of the 147th Division.

There was evidence that all three Accused listened to the Emperor's speech of surrender on 15 August 1945. [Note: the case refers to the capitulation speech as a speech of surrender; the formal surrender came on 2 September 1945].

D1 was the Commanding Officer of the 426th Regiment.

D2 was the Staff-Officer of the 147th Division as an Intelligence Officer.

D3 was an Adjutant to D1.

The 426th Regiment reported the capture of Hockley to the 147th Division. Hockley was supposed to be transported to the Division for Interrogation. The arrangement broke down. After the Emperor’s speech of surrender was made, a telephone conversation took place between PW4 and PW3, with D2 in the same room as PW3 in the Divisional HQ. On D2's instruction, PW3 gave the order to the Regiment to “dispose of” (“shochi se”) Hockley themselves. The conversation was reported to D1. He ordered D3 to kill Hockley, in the dark so that the others would not know. D3 then killed the victim.

The Prosecution argued that this was a case of execution without trial and without the excuse that there was an attempt to escape on the part of the victim.

The Prosecution alleged that D2 ordered that the Regiment should “suitably dispose of or deal with the” Prisoner of War (Hockley), despite the fact that he had no authority to do so. He used the word “shochi-se”, which was later clarified as “finish with him in the mountains” on that night. It was submitted the word “shochi-se”, or whatever that was uttered, had a strong implication that D2 wanted to kill the victim. This was so, in particular when it was viewed against the fact that D2 did not report this to anybody, including his superior.

Regarding D1, it was submitted that he understood the order was “unkind” but he decided that it meant “to kill” the victim. He assumed that the order came from the Division but did not take steps to verify it. It was also argued that if he was sure that the order was a lawful one from the Division Commander, there was no reason that he asked the killing to be hidden from other soldiers. He knew that nothing in the regulation permitted an execution. The allegation that the Division ordered him to cover up the affair was also unsupported by any evidence.

Regarding D3, the Prosecution alleged that when he was ordered to kill, the language used was “Shokode Shochi Seyo” which could have meant “to kill”. D3 did so and then proceeded, as ordered, to dig a grave. He neither checked nor verified the order with the first Accused, which had not specified when the victim would be executed. It was argued that although some orders were passed on to him, while he could have been uncertain, he could have waited for clarification instead of carrying out the execution immediately.

D1 and D3 admitted to being concerned in the killing of Hockley, but cited to Superior Orders, which they said were unambiguous. D2, on the other hand, denied ever having suggested, let alone ordered, the killing of Hockley.

The Defence, for D2, disputed the meaning of the word “shochi”. It argued 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 D2, was “shochi seyo” which had no implication that the victim would be killed. Instead, he was to be treated in accordance with the rules.

D2 argued that the alleged “clarification” made by him did not happen, it was a lie. He observed that there was only one Prosecution witness on this (PW3, who filed an affidavit instead of testifying in the court), and the evidence was not corroborated.

D1 argued that he interpreted the message as “to kill”. This was because he thought the message was an emergency measure. He had no intention to kill. He only acted upon the order as given by the Division and transmitted to him. He could not ignore the order and had no choice.

D3, the direct perpetrator, argued that the order given to him was clear. The execution had to be carried out that very same night. What he had done was certainly within the scope of the order. He did so with the minimum amount of physical suffering to the victim. The Defence accepted that he was "concerned in" the killing, but argued there were extenuating circumstances warranting a lesser degree of responsibility.

Major M.I. Ormsby (West Yorks)

Mr Murata Kiichi (Law Department of the Kyushu Imperial University, Japan

President: Lt. Col. R.C. Laming (M.B.E. General, Indian Army, Barrister)
Members: Major R.S. Butterfield, Indian Grenadiers; Major J.T. Loranger, Canadian Army, JAG Branch

Lieut D.C.J. Banfield (The BUFFS)

H.D. Porter(Attorney-at-Law, United States Government, attached to the Legal Section, General Headquarters, Supreme Commander of Allied Forces.)

Noboru Saito(Interpreter)

Ishida Heichiro(Attached to Gohoku, No. 147 Division)

Shimomura Tetsuhiko(Attached to the 426th Infantry Regiment)

Hitomi Tadao(Sergeant-Major, 426th Infantry Regiment)

Sasaki Masataro(Lieutenant, 426th Infantry Regiment)

Major Hirano(Second Accused)

Col. Tamura(First Accused. Regimental Commander, 426th Infantry Regiment.)

Capt Fujino Masazo(Third Accused. Adjutant to the Regimental Commander, 426th Infantry Regiment.)

Nanoshi Suboru(Interpreter, No. 5 Hong Kong War Crimes Court)

1947-05-30

1947-05-31

1947-06-02

1947-06-03

1947-06-04

1947-06-05

1947-06-06

1947-06-07

1947-06-09

1947-06-13

1947-06-13

1947-09-05

1947-09-12

Held: All the Accused were guilty as charged.

A number of 3rd party petitions were filed:
1. One filed by the father, father-in-law and mother-in-law of D2. According to this joint petition, D2 “gave instruction to treat the pilot” rather than to “dispose of the pilot” and there was a misunderstanding.
2. One filed by the wife of D2, Ikuko Hirano. Her statement was similar to that of Takajiro Aoki below.
3. One filed by Hiroshi Tuwa for D2. He stated that he understood that D2's “true intention” was to send to the POW to the Army headquarter.
4. One filed by Takajiro Aoki, Ex-Captain to the 147th Division. This person's affidavit was put in as an exhibit at the trial (Exhibit K) but he did not testify. He stated that he was present when the telephone conversation took place and heard that D2 give instructions to “properly treat the POW as usual” which implied compliance to the POW regulations including: (1) to bring him to the Army Headquarters; and (2) to hand him to military police. As such, it was D1 who should be held responsible as he disobeyed the lawful order.
5. One filed by Mayusurui Haruo (Navy Capt.), Kanazawa Asao (Lt. Col.), Nagayama Moriyasu (Lt.), Tani Tetsuo (Navy Commander), Kogi Kazuo (Lt-Col, Judicial Dept.), Shiozawa Kunio (Gendarmerie), Otsuka Tadashi (Navy Lt.), Takayama Masao (W.O.), Nakanashi Mitsuo (Navy Lt.-Commander, Medical Dept.), Kawai Kensho (Army Major). These persons were all inmates at Stanley Prison. They stated that D2 was a sincere Christian and was fully conversant with the rules and regulations of the Army and they “could not have believe that such a man as he would be concerned in a murder case”, taking his religion into consideration.
6. One filed by Tamura Masaki, the second son of D1. He argued that D1 only executed an order (which in the Japanese Army, as a matter of custom, cannot be disobeyed without having to leave the army or to suffer punishment) and had no intention to execute the pilot at all. He also argued that it was D2 and D3 who should bear the greatest responsibility, he stated that D1 was convicted “simply because he was in a superior position – a case of superior responsibility – and his punishment must, it [seemed to him], much lighter than those of the two others”.

D1 petitioned:
1. He took the instruction from the Division as an order to kill the victim and he had no intention to kill whatsoever before such instruction;
2. He was “accustomed to obeying the order of [his] superior and had no option but to carry out the Division’s instruction”.

D2 petitioned. He argued that:
1. He gave the order such that “the prisoner should be dealt with suitably by the Regiment”. He meant that the prisoner should be dealt with in accordance with the Intelligence Service Regulations. He did not anticipate that the prisoner would be killed at all.
2. If the order was to kill, he should not be sentenced to death since he was only obeying the order. The order was not illegal and he should be acquitted.

D3 also petitioned. He argued that he was concerned in the killing of the victim, but he was given a direct order by his commander to kill. His actions were at all times in accordance with his orders. Although he was reluctant and tried to delay the execution, he had no choice but to kill eventually.

The Judge Advocate advised, on 27 August 1946, that the petitions be dismissed and sentences confirmed [unidentified Colonel, DJAG, Far East Land Forces]. In his assessment, the case against D2 was weaker than against D1 and D3 about whom "there can be no doubt as to the correctness of the Court's findings as regards these two Accused". He pointed out that "Superior orders are not of course a ground of defence for an offence such as this but the Court evidently considered that they afforded some mitigation in the case of the No.3 Accused and accordingly refrained from sentencing him to death".

In relation to the disputed conversation, the evidence was conflicting. The court, according to the Judge Advocate, "went to great trouble in enquiring what expression was actually used by Hirano and what meaning should be attached to it." According to the Judge Advocate, "It 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". Circumstantial evidence also provided further grounds for the court's decisions - the normal procedure for dealing with Prisoners of War was not followed, possibly in light of the confusion after the Emperor's speech.
"Reviewing the evidence against Hirano as a whole I think that the Court were 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".

D1: Death by Hanging (16 September 1947);
D2: Death by Hanging (16 September 1947);
D3: 15 years imprisonment.

Japan; Captured airman; Prisoner of War; Imperial Japanese Army; Unlawful killing; Orders; Superior Orders; War Crimes; Violations of laws and customs of war; Mitigating Circumstances; Hierarchy; Emperor's capitulation; Miscommunication

• An unusually large number of petitions were filed in this case, including from a person who should have testified as witness (i.e. Takajiro Aoki, who was present and heard the order being transmitted). His testimony was by way of affidavit.
• 1 Defence lawyer represented 3 Co-Accused, who had very conflicting defences.
• The killing took place after the capitulation by the Emperor.