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:

Welcoming Suzannah Linton

It's our great pleasure today to welcome Dr. Suzannah Linton (left) as an IntLawGrrls contributor.
Suzannah holds the Chair of International Law at Bangor University School of Law, located in the largest city in the Gwynedd area in northwest Wales. She took up that chair in March 2011.
Before that, she had been a member of the law faculty at the University of Hong Kong. There Suzannah ran the human rights program and worked intensively on Asian matters implicating international law; most notably in Cambodia, East Timor, Indonesia, Nepal, and Bangladesh.
At Bangor Law, Suzannah spearheads international law research, teaching, and dissemination of International Law. She's founded the Bangor Centre for International Law, set up master's degree programs, and built a team of colleagues that includes Evelyne Schmid and Yvonne McDermott, both IntLawGrrls contributors.

Suzannah's many publications (see here and here) range widely within the field of accountability for atrocities. For instance, she is a co-editor of International Criminal Procedure: Principles and Rules, set to be published by Oxford University Press next May. In her introductory post below, Suzannah begins a 2-part series in which she uncovers a forgotten process of accountability in a most surprising location: Hong Kong. Today she outlines the overall project; in tomorrow's post, she will discuss her recent article on the subject, published earlier this year in the Melbourne Journal of International Law. 
Heartfelt welcome!

Uncovering post-WWII accountability, in Hong Kong

(Thank you to IntLawGrrls for the opportunity to contribute this introductory post, Part 1 of a 2-part series; Part 2 is here)

It was a real surprise for me to find, shortly after taking up an academic posting at the University of Hong Kong in 2005, that Britain’s one-time Pearl of the Orient had been the site of war crimes trials in the aftermath of World War II.

Very early on, I was delighted to supervise a dissertation about one of the trials by a then-student, Paul Harris, a Hong Kong Senior Counsel. I developed a fascination for the topic.
My own research has uncovered 3 different types of prosecutions:
► Treason trials, in the domestic Hong Kong courts, of persons accused of collaborating with the Japanese regime of occupation;
► War crimes trials, held by Australia with the consent of the British colonial administration, of crimes of particular interest to Australia (for example, concerning the prisoner of war camps in the Dutch East Indies); and, finally,
► Military proceedings brought by the United Kingdom under its Royal Warrant of 1946.
The atrocities committed in Hong Kong during the war were also tried by Chinese military tribunals, and formed part of the dossier of evidence heard in Tokyo by the International Military Tribunal for the Far East.
My work has focused on the third type of proceedings, to which I refer as the Hong Kong trials. In my article ‘Rediscovering the war crimes trials in Hong Kong, 1946-1948’, recently published in the Melbourne Journal of International Law, I introduce the product of several years of research into the topic.
This project began with a research grant that I won from the Hong Kong government in 2008, to: gather together the case files that were kept at the National Archives in Kew, about 10 miles west of central London; create a database to make the files available to the public; and analyse the materials. I launched the Hong Kong’s War Crimes Trials Collection website and database (above) in 2010, and have been continuing to conduct research in the area ever since.
As detailed in data available at the website, the accused in the Hong Kong trials were primarily members of the Imperial Japanese Army, including the Kempeitai, although several civilians and Navy officers were tried as well. In total, 46 judgements were issued. Of these, 44 were confirmed by the Reviewing Officer (Commander of Land Forces, Hong Kong), against 108 individuals. There were 14 acquittals. 2 judgements were not confirmed. There was one retrial following non-confirmation of the judgement, and one judgement was transferred to the Supreme Court, to be heard as the crime of treason instead of war crimes.

I am now completing the editing of Hong Kong’s War Crimes Trials, a book that has been commissioned by Oxford University Press. Contributors include experts such as Professor Robert Cryer of Birmingham University in England, Dr. Yuma Totani (right) of the University of Hawaiʻi at Mānoa, Professor Bing Bing Jia of Tsinghua University in Beijing, Dr. Nina Jørgensen (left) of the Chinese University of Hong Kong, Dr. Alexander Zahar of Macquarie University in Sydney, and Professor Roger S. Clark of Rutgers-Camden. Their essays will address, in far greater detail than my article, specific topics emerging from the Hong Kong trials, such as command responsibility, superior orders, and war crimes.
The precursor to that book is my just-published Melbourne Journal article, the contents of which I will discuss in my post tomorrow.

Cheers from China

SHENZHEN, China – Greetings from this bustling city, which didn't exist 20 years ago yet now has a population of 15 million.
Located on the mainland just across the border from Hong Kong, Shenzhen is also the home of Peking University School of Transnational Law, started 4 years ago as part of the century-plus-old Peking University system. Teaching classes in English to a student body that's mostly Chinese, STL, as insiders call it, is the 1st school in China to award an American-style J.D. The 1st class, of 53 students, will graduate later this month.
The picture above was made made by law school staffer Kim Zhong on Thursday, when I had the honor of delivering a public lecture entitled "Responsibility and the International Criminal Court." (The talk built on ideas in my essays recently placed on SSRN, here and here.) At right is Professor Jaime L. Dodge, a colleague of mine at Georgia Law and a Visiting Professor of Law at STL this summer. An expert in dispute resolution law, Jaime's teaching a course on class actions.
It was great to meet with students, faculty, and staff at STL, including Associate Dean Stephen Yandle, who as a Northwestern dean years ago had a hand in admitting yours truly to law school, and Jeff Lehman, STL's Chancellor and founding Dean. While staying on as STL Chancellor, Jeff soon will move north to lead a new educational venture, NYU Shanghai. Aimed at undergraduate education, it will be the 1st comprehensive liberal arts and sciences research university in China launched in partnership with an American university.
As for this 'Grrl, it's Hong Kong (right) for the weekend, then back to the mainland.

On August 23

On this day in ...
... 1839, having withdrawn from Canton (today, Guangzhou) amid a struggle with China's Qing authorities regarding its overseas trading posts in China, Britain seized Hong Kong (right) as its base of operations. The move would prove a prelude to the 1st Opium War. At the time "a minor outpost," the harbor region and island of Hong Kong, both on the southern coast, would become a major anchor, in political and economic terms, of British imperial power. (image credit) As posted, China would regain Hong Kong in 1997.

(Prior August 23 posts are here, here, and here.)

On December 19

On this day in ...
... 1984 (25 years ago today), in Beijing, British Prime Minister Margaret Thatcher and Chinese Premier Zhao Ziyang signed the Joint Sino-British Declaration, which provided that Hong Kong would be returned to China in 1997, thus "end[ing] 155 years of British rule in the colony" and "launch[ing] a new era in trade and diplomacy between the two countries." The transfer did go forward as planned, although in wake of the 1989 Tiananmen massacre England "gran[ted] British passports to 50,000 Hong Kong heads of families, buil[t] a new international airport, and introduc[ed] a Bill of Rights."

(Prior December 19 posts are here and here.)