Wednesday, October 3, 2012

Hong Kong's 1940s war crimes trials rediscovered

(Part 2 of a 2-part series; Part 1 is here)

Having described in yesterday's post my overall research into post-World War II trials that took place in Hong Kong, today I discuss the most recent product of that research: ‘Rediscovering the war crimes trials in Hong Kong, 1946-1948’, published earlier this year in the Melbourne Journal of International Law. My post concludes with thoughts about the importance of and prospects for this project.

Rediscovering Hong Kong war crimes trials
My article begins by placing the trials in their historical context.
The Hong Kong war crimes trials were part a process of accountability parallel not only to the well-known trials at Nuremberg and Tokyo, but also to the thousands of academically neglected ‘minor’ Asian war crimes trials held by the British, Dutch, Chinese and Americans. Although in the ‘minor’ category, the Hong Kong trials involved some of the more notorious atrocities of World War II in Asia:
►  The killings and abuse that accompanied the invasion of Hong Kong island;
►  The web of prisoner of war camps on the island of Formosa (now, Taiwan) and at Hong Kong;
►  The extensive and systematic torture and abuse practised by the Kempeitai, the Japanese military police, in occupied Hong Kong; and
Lisbon Maru
►  Two notorious events at sea, surrounding the high seas sinking of the vessels Lisbon Maru and Behar and the killing of those on board.
The cases brought together as accused 2 lieutenant generals, 2 major generals, 1 rear admiral, 6 colonels and 3 majors, although the majority of the accused included lower-ranking members of the Imperial Japanese Army and Kempeitai, as well as several civilians.
In the article, I wanted to focus on presenting the neglected process and trials as they were, warts and all.
The article traces the legal basis for the trials, specifically: the constitutive UK Royal Warrant of 1946 and the Regulations annexed to it; the instructions issued by Allied Land Forces South East Asia, which oversaw the process in Hong Kong; the 7th edition of Britain's Manual of Military Law 1929 (as amended in 1936 and 1944), which applied through the Royal Warrant’s Regulations; and, finally, the international crime emerging from, to quote the Warrant, ‘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’.
‘Rediscovering the war crimes trials in Hong Kong, 1946-1948’ then proceeds to engage with some of the legal issues arising, namely:
►  Jurisdictional challenges (i.e. how the courts exercised jurisdiction over war crimes not just in Hong Kong, but also in Formosa (Taiwan), in China (Shanghai and Waichow), in Japan, and on the high seas;
►  Subject-matter jurisdiction, personal jurisdiction and temporal jurisdiction;
►  Procedure;
►  Superior orders;
►  Modes of responsibility; and
►  Sentencing issues.
I use four very different but fascinating case studies to provide a more informed insight into the events and the proceedings, and also briefly examine the local treason trials, as well as the Australian, Chinese, and Tokyo proceedings, each of which had a different Hong Kong nexus.
Piecing together the legal aspects of the trials has been unusually challenging, for these were military trials where no reasoned judgements accompanied the verdicts (this was not unusual, although some of the World War II cases did have reasoned decisions).
The law emerging from the Hong Kong trials was excavated by drawing extensively from the previously unexplored cases; by focusing on transcripts, documents admitted as evidence (affidavits, etc.), and the reports of the Judge Advocates; and of course,by  analysing the primary sources of law referred to earlier.
It is true that nothing can substitute for a decision that explains the reasoning of the court. But this article, and the forthcoming book that I am editing, entitled Hong Kong’s War Crimes Trials, do show that we can still gain much insight into the proceedings by closely examining the case files in order to put the jigsaw together. As I wrote in my closing paragraph:

'In their entirety, the cases provide the state practice or usus that is critical for the process of formation and identification of customary international law. The fact that in the explosion of international criminal law that has occurred since the establishment of the Yugoslavia and Rwanda tribunals, these cases and the British sister proceedings in Singapore, Malaya, North Borneo and Burma, as well as the Australian, Chinese and Dutch trials in the post-Second World War era have not been consulted, must call into question the correctness of what is claimed to have been the law emerging from the post-Second World War trials. It seems obvious, but in need of assertion, that state practice is not just to be found in the Nuremberg, Tokyo or Control Council Law No 10 tribunals, nor just in the ad hoc scattering of European domestic trials that are unequally relied on.'
Concluding thoughts
Hong Kong’s war crimes trials have not just represented an intellectual journey of discovery and learning. An extraordinary aspect of this project has been the extent to which the present and past have come together.
I have been immensely fortunate to be able to locate and interview several individuals with direct knowledge of these events; for example, a former judge and prosecutor, a victim of torture who testified in the proceedings, and a woman who was a child when one of the leading accused commandeered her family home.
Ever since the project came to public attention in 2010, I have been regularly contacted by strangers from across the world offering support. Time and time again, people have written to say they discovered some information from the Hong Kong’s War Crimes Trials website, and they seek further details about family members who have often passed on. I have happily dug through the files many times to find old documents that connect surviving family members with the past, and have been able to provide them with records and documents they never knew existed. At times, I have even dealt with the very same persons whose names appeared on the pages that I had been reading. It has been an unexpected, but extraordinary, privilege to help others in this way, and to be invited to share in so many family histories.
Another very great privilege for me was to be able to work with some terrific technicians and draw in some of the finest law students at the University of Hong Kong. They represent the present generation, and it is so gratifying to watch how they continue to be inspired and committed to the project – how they have taken ownership of this piece of their history as Hong Kongers.

1 comment:

PokfulamHK said...

I came across this while researching Japanese War Diaries. Since this is a forum for International Law students I believe it would be appropriate to remind readers that despite the focus on the finer points of jurisprudence, at the end of the day this was victors justice and similar atrocities by the Allies went unpunished. Take for instance the sinking of hundreds of sampans in Victoria Harbour and Lamma Channel by trigger happy (British) artillery. These were boats with whole families onboard. Or take the Hong Kong Police's euphemistic phrase that looters were dealt with by "extreme measures" - or of their recruitment of triads to kill fifth columnists (in practice they just executed rivals). And who is to say that the Japanese were not fired on from the Salesian Mission? we know for sure that they WERE fired on from the vicinity of St Stephen's Hospital because the British had set up their final defense line, replete with machine guns and artillery, behind it. We don't know the Japanese version because no defense witnesses were produced. Ironically one of the trials was against a Japanese military judge for doing the same thing - not affording a fair defense. We also know from eyewitness accounts that at least one Japanese officer was shot whilst imploring troops to surrender - as ever, the account is euphemistic.

Trying generals for command responsibility over specific incidents was something which was never done on the Allied side - then or since. This has always been a fundamental flaw in the Western sense of justice - not to afford ones enemies the rights established for oneself. The notion is that THEY fought to defeat these principles, so they are not entitled to them (other than through lip service to the written word). So in every war, the Allies expect to be treated in accordance with their own principles and will hold the enemy accountable, but do not see the hypocrisy in not affording the enemy the same consideration.

In fact nothing much has changed in 70 years.