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:

Civilian participation in armed conflict

(Thanks to IntLawGrrls for the opportunity to contribute this guest post on my paper entitled "Regulating the Irregular – International Humanitarian Law and the Question of Civilian Participation in Armed Conflicts")

It has been over thirty years since the adoption of the 1977 Additional Protocols to the Geneva Conventions of 1949, and sixty since the adoption of the Geneva Conventions themselves. (creditfor ICRC photo of signing of 1949 conventions) These landmark instruments transformed the laws of war in regards to the treatment of non-conventional participants in armed conflicts. Partisan and resistance fighters, as well as persons participating in wars of national liberation, were granted the same kinds of protections – such as prisoner of war status – as their ‘regular’ defence force counterparts.
These changes to the law of armed conflict came about in response to political and social changes in the international landscape. As a law that aims, among other objectives, to protect persons who take direct part in hostilities, it was logical that the law be amended to better reflect the practical realities of the situations it regulated.
However, since the adoption of these instruments, there has been a significant jump in the number and kind of irregular participant currently engaged in armed conflicts around the world. A modern-day battlefield may see the involvement of:
► Private military contractors,
► Organised armed political and criminal groups, and
► Civilians who are taking direct part in the hostilities.
International humanitarian law does not prohibit civilians from taking part in hostilities, but such participation will result in the temporary loss of protected civilian status. Thus, under Article 51(3) of Additional Protocol I, a civilian taking direct part in hostilities will render themselves liable to targeting by the adverse party, for so long as they take direct part in hostilities.
At the time of adopting this provision, the international diplomatic conference convened to debate the protocols declined to further elucidate the parameters of ‘direct participation in hostilities’. (See the conference's Official Records , vol. XV, p. 330.) Article 51 does not go into further detail.
The official Commentary on the Additional Protocols provides the following test:

Civilians must abstain from all hostile acts "which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces."

Even though no reservations were made to Article 51(3), state practice over the intervening years has been imprecise, and occasionally contradictory. This led the authors of the 2006 International Committee of the Red Cross (image credit) study into customary international humanitarian law to declare:

'A precise definition of the term “direct participation in hostilities” does not exist.'

This situation of uncertainty looked to be resolved with the 2009 publication of the ICRC’s five-year long expert research project on the “Direct Participation in Hostilities”.
The study – involving fifty experts drawn from state armed forces, academia, and legal practitioners – aimed to finally determine three fundamental questions. As stated in Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC, 2008), p. 994.):
► (1) Who is a civilian for the purposes of the principle of distinction?
► (2) What conduct amounts to direct participation in hostilities?
► (3) What modalities govern the loss of protection against direct attack?
The Interpretive Guidance further states, at p. 1016, that, in order to qualify as direct participation,

[a] specific act must meet the following cumulative criteria: (1) the act must be likely to adversely affect the military operations of military capacity of a party to an armed conflict or alternatively to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm); (2) there must be a direct causal link between the act and the harm likely to result from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and (3) the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

The process that produced the Interpretive Guidance was noteworthy for the controversies and disagreements that marked the experience. Consensus was hard to achieve. As detailed by W. Hays Parks in this 2010 article, dispute arose over the inclusion of Section IX in the final document. Also disputed was the definition of membership in armed groups, as Kenneth Watkin discussed here.
A considerable number of participating experts requested their names be removed from the final document. The ICRC, in response, ‘took back’ the Interpretive Guidance, and issued it under its own auspices.
However, of particular concern regarding the Interpretive Guidance is the incongruity of the aims of the study into direct participation, and the outcomes.
That is to say, the intention behind the study into direct participation was to clarify when civilians could be considered as taking direct part in hostilities, for the purposes of whether they could be targeted or not. Thus, a party to the conflict, or an individual participant, in making targeting decisions, would have to assess whether the persons in question were legitimate targets due to their direct participation. Indeed, the outcome – a long, detailed and quite complex cumulative test – presents as a series of questions that can only be successfully answered after the targeting decision.
It may well be that such a complex test would prove useful when a targeting decision is being made prior to any active engagement, against a target that is offering no immediate threat – the targeted killing of Osama Bin Laden (left) (IntLawGrrls posts available here) is an obvious example. (credit for FBI photo) However, one must question the utility of this Interpretive Guidance in active hostilities.
It seems exceptionally unlikely that an individual soldier could make such an assessment in a combat situation, under fire, with little time to weigh up whether persons whom they confront in battle are meeting the requisite threshold – of harm, causation criteria, and belligerent nexus.
In short, it seems that the situation regarding civilian and irregular participation in armed conflict remains as controversial and unclear as before.

On June 10

On this day in ...
... 1805, a 4-years-long conflict known as the 1st Barbary War or the Tripolitan War came to an end. (credit for drawing of 1803 battle) Yussif Karamanli, the Pasha of Tripoli, signed a treaty ending hostilities with the United States in land and of waters of what's now called Libya. Article 2 of the Treaty called for the exchange of captured nationals and the U.S. payment to Tripoli of $6,000, "for the difference between the Prisoners herein."

(Prior June 10 posts are here, here, here, and here.)

On July 30

On this day in ...
… 1947, Françoise Barré-Sinoussi (left) was born in Paris, France. (photo credit) In 1983, while researching retroviruses at Paris'Institut Pasteur , she discovered the HIV virus. Together with her boss, she was awarded the 2008 Nobel Prize in Physiology or Medicine for her discovery. She is currently the director of the Unité de Régulation des Infections Rétrovirales at the Institut. In 2009, Barré-Sinoussi wrote an open letter to Pope Benedict XVI to protes his statements that condoms are at best ineffective in combating HIV/AIDS.
… 1863, President Abraham Lincoln (right) issued the "eye-for-eye" order to shoot rebel prisoners under certain circumstances. (photo credit) Known as the Order of Retaliation, it stated:

It is … ordered that for every soldier of the United States killed in violation of the laws of war, a rebel soldier shall be executed; and for every one enslaved by the enemy or sold into slavery, a rebel soldier shall be placed at hard labor on the public works and continued at such labor until the other shall be released and receive the treatment due to a prisoner of war.

(Prior July 30 posts are here and here.)

On this day

On March 26, ...
... 1953 (55 years ago today), U.S. Secretary of Labor Elaine Chao was born in Taipei, Taiwan. Her family emigrated when she was 8; she attended high school in Long Island, New York, and eventually earned an M.B.A. degree from Harvard. Before assuming her present position in 2001, Chao'd served as Director of the Peace Corps from 1991-92. Appointed to lead the Labor Department in 2001, Chao's the 1st Asian-American woman ever appointed to the Cabinet of a U.S. President.
... 1888 (120 years ago today), Elsa Brändström was born in St. Petersburg, Russia. The daughter of a Swedish diplomat, during World War I she was moved, upon seeing Germans held as prisoners of war in Russia, to become a nurse. The care she gave those POWs earned her the nickname "Angel of Siberia" and, in 1951, posthumous recognition on a German stamp (right). Having moved to Germany after the war, when Adolf Hitler took power she and her husband fled to the United States, where they helped to care for European refugees. She died in Cambridge, Massachusetts, a few weeks shy of her 60th birthday.

On February 5, ...

... 1998 (20 years ago today), Gen. Manuel Antonio Noriega, deposed as leader of Panama by the U.S. military, was indicted on charges of money laundering and drug trafficking. As we've posted, he was eventually convicted, and he has just completed a 17-year sentence. He remains in prison nonetheless, on account of the ruling last August that he could be extradited to France, which already has rendered an in absentia conviction of Noriega, now 73, on additional money laundering charges. Another Miami-based judge has just blocked that extradition until after completion of Noriega's appeal, which invokes Third Geneva Convention of 1949, dealing with treatment of prisoners of war.
... 1626, Marie de Rabutin-Chantal was born in Paris, the granddaughter of Jeanne de Chantal (in English, Jane Frances de Chantal), a French noblewoman who would be named a saint for having established the Roman Catholic Order of the Visitation of Our Lady after becoming a widow at age 28. Marie herself was widowed at age 26 after her husband was fatally wounded in a duel. Under her married name, Marie Sévigné (above), she wrote letters to her daughter until her own death in 1696. Still in print, this 25-year correspondence remains an important artifact of the times in which Mme de Sévigné lived.

Plus ça change: The Trial of Henry Wirz

The 1865 trial of Henry Wirz (right) before a military commission is often touted as a prominent early war crimes prosecution. Wirz, Swiss by birth, was a Confederate Captain. After spending a year in Europe as a special emissary to Jefferson Davis, the president of the Confederacy, he was appointed commander of Camp Sumter (below) near Andersonville, GA. The prison housed Union POWs. At one point, its population swelled to 33,000 persons, making the prison the 5th largest city in the Confederacy, according to one report. Of the almost 50,000 prisoners detained in the camp during the war, over 10,000 apparently died of disease and malnutrition given the over-crowded and squalid conditions.

At the end of the War, General Robert Lee and other high level Confederate officials (including the Confederate Secretary of War) were to be charged with the broad crime of conspiring to injure the health of Union soldiers held in the Confederate states. However, in August 1865, President Andrew Johnson (left) ordered that the high-level charges be dropped. Nonetheless, Wirz was eventually prosecuted for mistreating and murdering Union soldiers detained in the prison in violation of the laws and customs of war. Several former prisoners testified against him.

In his defense, Wirz argued that under the circumstances of the war, he was unable to ensure proper conditions in the prison and was otherwise just following orders. In pleading his case, he wrote:

I do not think that I ought to be held responsible for the shortness of rations, for the overcrowded state of the prison (which was in itself a prolific cause of the fearful mortality), for the inadequate supplies of clothing, and of shelters &c. Still I now bear the odium, and men who were prisoners here seemed disposed to wreak their vengeance upon me for what they have suffered, who was only the medium, or I may better say, the tool in the hands of my superiors.

May 7, 1865 letter from Capt. Hy Wirz to Maj. Gen. J. H. Wilson. (This letter, the indictment, and judgment against Wirz are available in U.S. Army, 8 The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies.)

The military commission rejected Wirz’s defense and sentenced him to death by hanging. Notwithstanding that many wrote to President Andrew Johnson pleading Wirz’s pardon or at least the commutation of the death sentence, Wirz was hanged on November 10, 1865 (left). On the gallows, he reputedly stated:

I know what orders are. And I am being hanged for obeying them.

Goodbye to "Get Out of Jail Free!" cards

There's much food for thought in the news of U.S. District Judge William M. Hoeveler's ruling that Gen. Manuel Antonio Noriega, due for release next week from U.S. federal prison, may be extradited to France, where he's been convicted in absentia of laundering proceeds from drug trafficking through French banks and the French real estate market.

There's the decision itself, of course:

Convicted of drug trafficking by a Miami-based jury in 1992, Noriega, de facto ruler of Panama at the time of his 1989 capture there by U.S. troops, enjoys, by judicial order, the status of a prisoner of war protected by the Third Geneva Convention. Hoeveler's decision hinged, therefore, on his conclusion that the Convention does not forbid transferring a POW to a 3d state for criminal trial. Noriega's attorney's said to be mulling "whether to challenge the ruling in the United States Court of Appeals for the 11th Circuit or with the United Nations." That last reference comes as a surprise. Can't think of any U.N. body that might be able to do anything enforceable in the matter except the Security Council, where, of course, the United States and France both have power to veto any such move.

And then there's the larger picture:

As more and more states reach outside their own territory to exercise criminal jurisdiction, it seems likely that the most notorious persons who suffer conviction and less-than-a-life-sentence in 1 sovereign state will look forward not to a final release date, but rather, on release, to a move to another jail in another sovereign state. Perhaps it's the ne bis in idem (that's double jeopardy, roughly speaking) overtones in this prospect that explain France's no-comment on the still-pending U.S. case -- as Reuters' Paris bureau put it, why France has made no official statement but instead "accepted the decision with prudence and discretion."