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H O N G K O N G ’S W A R C R I M E S T R I A L S
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Hong Kong’s War
Crimes Trials
Edited by
SUZANNAH LINTON
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
# The several contributors, 2013
The moral rights of the authors have been asserted
First Edition published in 2013
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a retrieval system, or transmitted, in any form or by any means, without the
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rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
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and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
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Published in the United States of America by Oxford University Press
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Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Foreword
When we contemplate the war crimes trials that took place after the Second World
War, no doubt Nuremberg stands out. Digging only a bit deeper, we might recall
the International Military Tribunal for the Far East (known widely as the Tokyo
Trial) and the trials in the domestic courts of the Western nations. But only the
most knowledgeable and committed of scholars and historians would mention the
trials in the Allies’ Occupied Area in Asia after the surrender of the Japanese
Imperialist Army. Because archival materials have been buried and researchers
have remained focused on more prominent post-war developments, the facts of
those trials—in China, Singapore, Malaysia, the Philippines, Indonesia, Taiwan
(China), and Hong Kong—have remained hidden.
Until now, that is. Thanks to the brilliant research and tireless efforts of Professor
Suzannah Linton, as well as the learned interventions of this volume’s contributors,
Oxford University Press presents ‘Hong Kong’s War Crimes Trial’. The compil-
ation fills an important gap in the conversation about the war crimes trials that
occurred in the years following World War II.
The Japanese invasion of Hong Kong began on 8 December 1941, less than
eight hours after the air attack on Pearl Harbor. It ended just 17 days later, on 25
December 1941, with the surrender of the British army, and three years and eight
months of occupation ensued. In the time that the Imperial Japanese adminis-
tration ruled Hong Kong, the Japanese army committed hideous crimes against
Prisoners of War (‘POWs’), medical personnel, and civilians. It murdered and
tortured, raped, and plundered. It subjected the citizens of occupied Hong Kong to
inhumane treatment and arbitrary detention, and it forcibly displaced thousands.
The Japanese army’s crimes were numerous and indiscriminate. The most
notorious crimes, committed against medical personnel and the wounded and
sick, came just before the British surrendered: Japanese soldiers entered St
Stephen’s College, which was being used as a hospital, and they shot two volunteer
doctors when entry was refused. They then burst into the wards and slaughtered
170 recuperating soldiers and several members of the staff. The hospital’s nurses
were brutally raped and slaughtered. No less egregious were the atrocities commit-
ted at Hong Kong Red Cross Hospital, which housed hundreds of injured British
soldiers. There, the Japanese army cut the eyes, ears, noses, tongues, and limbs off
dozens of victims, and 70 soldiers were killed while they were convalescing in bed.
These actions were subsequently found to violate the 1864 Geneva Red Cross
Agreement (the seeds of what would become the International Red Cross Conven-
tion) regarding the treatment of POWs.
vi Hon Justice Liu Daqun: Foreword
All of this we know. But as Professor Yuma Totani reports in these pages, the
crimes committed in occupied Hong Kong were not confined to this sort of isolated
incident. The Japanese administration held 7,000 British soldiers as POWs in
camps in Hong Kong, such as at Sham Shui Po, and in Taiwan, China. What is
more, thousands of civilians were incarcerated, among them Hong Kong Governor
Mark Young. Sickness, malnourishment, famine, inhumane treatment, and even
torture were pervasive. Professor Totani provides a unique and important analysis
of the legal cases that arose out of those horrifying events.
But the Japanese soldiers did not simply detain POWs and local citizens.
Professor Linton’s chapter shows how they also terrorized the local population by
murdering, raping, and looting, among other crimes. The Kempeitai treated the
native population as something less than human; they routinely performed execu-
tions at King’s Park in Kowloon without any pretence, using local citizens for
shooting and bayonet practice and even beheading some. Moreover, as many as ten
thousand women were raped in the first few days of the occupation. Perhaps twice
that number, including women and children, were killed, and thousands more
starved to death. Many parts of Hong Kong were ransacked and burned, food
became scarce, and disease flourished. Conditions deteriorated to the point that the
administration had to pursue a policy of repatriation, through which it deported the
unemployed and the sick to Mainland China, discussed in detail in Professor
Linton’s chapter. Many of the residents who were not deported actually chose to
leave, such was the quality of life on the island, only to find that famine and disease
were no less common on the mainland. This combination of voluntary and forced
emigration caused the population of Hong Kong to dwindle from 1.6 million in
1941 to just 600,000 in 1945.
After the unconditional surrender of Japan, control of Hong Kong fell to the
Allied Land Forces of South-East Asia (ALFSEA). For thousands of years, it had
been common and accepted practice in Asia for victors in war to retaliate against
their opponents, often by summarily executing war criminals upon their capture. In
contrast, it has long been a tenet of International Law that nations have ‘territorial
jurisdiction’—that is, every state has the authority to set up special courts to try war
criminals for crimes committed on its own territory. After Japan’s surrender, only
one of those principles could prevail.
What happened next changed the course of history. Beginning in January 1946,
the British military courts put the Japanese war crimes suspects on trial. The mere
existence of the Hong Kong trials was an important triumph for international
justice and represented a critical development for East Asian relations. But the
principles espoused by those courts were no less crucial; for starters, only those
whose criminal conduct was proved beyond a reasonable doubt were punished.
That important principle in place, all that remained was to determine the law
that the courts would apply. That question was answered on 18 June 1945 with the
promulgation of the Royal Warrant and its annexed Regulations. Significantly, the
law that the Hong Kong tribunals would apply was not an arbitrary exercise of
power on the part of the victorious nations, but rather an expression of the
principles of International Law prevailing when the courts were created. This
Hon Justice Liu Daqun: Foreword vii
not well documented. Most of the documents from Asia’s post-World War II war
crimes trials still sit in piles in the deepest of archives, untouched and unutilized. In
his chapter, Professor Roger S Clark comments on this disparity in order to place
the Hong Kong trials in perspective alongside the contemporary trials about which
we know so much more. As Professor Clark notes, the events that took place in the
occupied parts of Asia during and after World War II can provide some insight into
the roles and best practices of modern tribunals, such as the International Criminal
Court.
Viewed more broadly, Professor Linton’s entire volume is a remarkable contri-
bution to our understanding of the military and legal atmosphere in Asia at the end
of the War. Perhaps the most precious piece of history Professor Linton presents,
though, is her interview with Major Murray Incell Ormsby, who was a panel
member (that is, a Judge) and then a Prosecutor at War Crimes Court No 7 in
Hong Kong. Major Ormsby was involved in 27 of the 46 trials that were held in
Hong Kong, and he provides a compelling firsthand account. Like the rest of the
research presented here, the precision and consistency of Major Ormsby’s recollec-
tions are a precious asset as we begin—some would say six decades too late—to
study the prosecution of the Japanese atrocities committed in Hong Kong during
World War II.
In a characteristic moment of clarity, Major Ormsby declared, ‘I feel that we
pioneers of the War Crimes trials, we started it and we finished it and we should
have got some kind of recognition.’ Let this volume serve as the first step towards
recognizing those contributions to the development of international justice and
International Criminal Law, but let it not be the last.
This page intentionally left blank
Foreword
Mr Kevin Zervos, SC
Director of Public Prosecutions, Hong Kong, China
Hong Kong’s War Crimes Trials provides a rare and important insight into the
evolution and development of international criminal justice.
In the aftermath of the cruelty and horror of war, comes a time for reckoning. In
the past, that reckoning would be dispensed by the victor, which invariably would
be one-sided and arbitrary. As to whether justice was served, if at all, depended on
the magnanimity, or otherwise, of the victor.
The war crimes trials of the Second World War were a major turning point in
bringing to account the perpetrators of atrocities, committed in the course of the
hostilities and ensuring that this was done through the proper process of the law.
Whilst we have come a long way since then, the seeds were sown for the develop-
ment of international humanitarian and criminal law for which we and future
generations will benefit. The underlying principle that emerged and continues to
gain force is that bringing someone to account requires justice to be dispensed in a
just and fair manner. The distinguished English jurist Tom Bingham observed that
in the aftermath of war ‘. . . scrupulous observance of the rule of law may be seen to
serve the common interest of mankind’. So it was with the war crimes trials of
Hong Kong.
On 8 December 1941, the Japanese attacked Hong Kong, a day after they had
attacked Pearl Harbor. The British forces surrendered on Christmas Day and the
Japanese commenced a brutal occupation that lasted nearly four years. The atroci-
ties inflicted on the Allied forces and the people of Hong Kong were horrific and
long lasting. It had been variously declared throughout the Second World War that
the perpetrators would be brought to justice and in its aftermath, war crimes trials
were convened at Nuremberg, Tokyo, and various other places, including Hong
Kong.
The war crimes trials of Hong Kong were conducted by the British military
authorities over a period of three years. In all, there were 46 trials with 123
defendants. At the end of the trial process, 108 were convicted and 14 were
acquitted. The sentences imposed on the guilty varied but 24 were sentenced to
death with three reduced after review. As in the trials in the British areas of
occupied Europe, the courts in Hong Kong operated under the authority of a
Royal Warrant. It was thus by royal fiat of the Crown that their jurisdiction,
powers, and procedures were based on traditional courts-martial.
Despite the inhumanity of war, there has been a growing realization
that international conflicts were to be conducted subject to basic humanitarian
principles. Over time, international treaties were adopted that provided formal
statements of the laws of war and war crimes. This was seen with the Hague
xii Mr Kevin Zervos, SC: Foreword
Conventions of 1899 and 1907, the four Geneva Conventions which were adopted
and expanded from 1864 to 1949 with two Additional Protocols in 1977, and the
Genocide Convention of 1948.
The London Charter of the International Military Tribunal of 8 August 1945
provided the principles on which war crimes trials were to be conducted. This in
turn, through the momentous developments of the 1990s, was to inform the
principles leading in part to the Rome Statute of the International Criminal
Court on 1 July 2002.
Professor Suzannah Linton has, through her comprehensive research and fine
scholarship, put together an excellent compendium of articles that take us back to
the war crimes trials of Hong Kong. In Professor Linton’s interview of Major
Murray Incell Ormsby, we are given a first hand account of what confronted the
people with the responsibility of conducting the trials. It reveals an instinctive
focus on fairness and due process and a deep appreciation of the importance of the
task at hand.
This book provides a rich tapestry of information about the conduct of war
crimes trials both generally and specifically in relation to those conducted in Hong
Kong. Professor Linton and Professor Alexander Zahar, in their well-researched and
detailed expositions of the British Military Courts, both explain the trial practice
and procedure. The process was carefully crafted to ensure a full and proper
presentation of the case against an accused which followed a procedure that
aimed to be fair and consistent. The convictions and sentences after trial were
reviewed by Judge Advocates who would decide whether or not to endorse them.
Professor Zahar highlights certain disadvantages faced by the accused, such as,
single legal representation for multiple accused, a Japanese legal representative who
was generally unfamiliar with English laws, and the adducing of testimony without
oral examination. He questions the notion of justice, by stressing that victor’s
justice can be selective and biased.
Professor Yuma Totani provides case studies of the trials in relation to the
treatment of Prisoners of War, who suffered horrifically, and issues as to individual
and collective responsibility for the crimes alleged. This issue is further explored by
Professor Nina Jørgensen, who considers in the context of the Hong Kong trials
and beyond whether ‘concerned in a crime’ is to be equated with ‘joint criminal
enterprise’: this notion is subjected to critical analysis.
It comes as no surprise that a key issue that arose in the trials was the plea of
superior orders; either as a defence, or as a mitigating factor, or both. The tracing of
the plea of superior orders by Professor Bing Bing Jia provides an invaluable insight
and analysis that brings into sharp focus the issue in the current context. The plea as
a defence was resisted by the British Military Courts, but the controversy surround-
ing it remains to this day, notwithstanding the recognition of it under Article 33 of
the Rome Statute.
Professor Roger Clark completes this amazing journey in time by noting
the importance of learning from the past and putting it in the context of the
evolutionary development of international criminal justice.
Mr Kevin Zervos, SC: Foreword xiii
This project is built on the support of many people, over several years.
Thanks must first go to Paul Harris, Hong Kong Senior Counsel, a former
student of mine at the University of Hong Kong. Through supervising Paul’s LLM
dissertation on Colonel Noma Kennosuke, I learned about the Hong Kong trials
for the first time. Then, the Hong Kong Research Grants Council saw the potential
of my proposed research into Hong Kong’s legal history, and awarded me a
generous grant to enable me to bring this project to life. I thank the UK National
Archives for allowing me to copy their files and use them on the database, and for
the wonderful facilities for researchers at Kew. My fantastic team at the University
of Hong Kong was instrumental in helping set up the Hong Kong War Crimes
Trials Database, which we have all relied on in this book. I thank, in particular,
Ernest Ng, Dixon Tse, Janet Man, Dave Low, and David Palmer. Ernest and Dave
have continued to provide me with assistance during this stage of the project.
I am deeply grateful to all the contributors to this volume for their painstaking
work, which has led to wonderful and important contributions. I am touched by the
warm and generous support of Hon Justice Liu Daqun and Kevin Zervos, Senior
Counsel in their forewords. Hon Justice Liu has been an enormous support to me
from the moment he learned of the work that I was doing. My friends from the ICRC
in Beijing have been very supportive too. The late Antonio Cassese, who inspired so
many of us in so many ways inter alia through his trailblazing work on the Tokyo
trials, was very encouraging of my efforts. At Oxford University Press, Anthony
Hinton has been very supportive throughout, and I thank the editorial team. Thanks
to Sinan Ali, Guo Cai, Damian Etone, Mairwen Owen, and Marie Parker, who have
helped me with the preparation of the manuscript, and with some research. Thomas
Arwel Bullock was a great assistance with the transcription of my interviews with
Major Murray Ormsby. I thank Lord Anglesey and the National Trust for allowing
me to access original copies of early editions of the British Manual of Military Law
from his personal collection at Plas Newydd, Anglesey.
I owe thanks of a different nature to the late Murray Incell Ormsby and his
wonderful wife, Chris, for so generously letting me into their lives. Thanks also to
Donal Lowry, who brought us together. I thank Luba Estes for her constant support
since we met on the internet when she shared the story of her life, and that of her
father as a prisoner of war in Hong Kong. I thank the many other friends that I have
made through this project, and those others who have telephoned, come to see me, or
written to me over the years from so many different countries, to encourage me in my
work. I think in particular of Lawrence Tsui, Stephen Tsui, Dennis Ching, Michael
Liu, Song Jie, Tony Banham, John Lowe, and Judy Buntrock-Lewis.
Thank you also to those others who I should thank but have failed to do so.
Please forgive my absentmindedness.
Suzannah Linton
1 August 2013
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Contents
1. Introduction 1
Suzannah Linton
2. Trial Procedure at the British Military Courts, Hong Kong,
1946–1948 13
Alexander Zahar
3. The Prisoner of War Camp Trials 71
Yuma Totani
4. War Crimes 95
Suzannah Linton
5. On Being ‘Concerned’ in a Crime: Embryonic Joint
Criminal Enterprise? 137
Nina H B Jørgensen
6. The Plea of Superior Orders in the Hong Kong Trials 169
Bing Bing Jia
7. Concluding Thoughts 199
Roger S Clark
Bibliography 247
Index of Names 253
General Index 257
This page intentionally left blank
Table of Cases and Legal Materials
Trial of Choichi Sato (HKWCT Collection, File No WO235/1027). . . . . . . . . . . . 147 nn. 59–60
Trial of Lt Gen Eiichi Kinoshita and Sgt Bunzo Yoshida (HKWCT Collection, File No
WO235/1116). . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 30 n. 118, 49, 53, 67, 68 nn. 398–9,
149, 150 nn. 71–6, 154, 156, 160
Trial of Sgt Hanada Zenji and three others (HKWCT Collection, File No
WO235/895). . . . . . . . . . . . . . . . . . . . . . . . . . 27, 33 n. 143, 34 n. 146, 49, 52, 53 n. 288,
61 n. 356, 138 n. 3, 148 n. 66
Trial of Maj Hirao Yoshio (HKWCT Collection, File No WO235/1098) . . . . . . . . . . . . .21 n. 51,
27, 44 n. 241, 45 n. 242, 49, 53, 63 nn. 367–8,
118, 120, 122 n. 151, 183, 184 nn. 83–6
Trial of Sgt Maj Honda Isamu (HKWCT Collection, File No WO235/1045). . . . . . . . .27, 50, 52
Trial of Sgt Maj Kamada Yasushi (HKWCT Collection, File No
WO235/1057). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 38, 39 n. 190, 50, 51 n. 284, 53
Trial of Inouye Kanao (HKWCT Collection, File No WO235/927) . . . . . . . . . . . 21, 21 nn. 45–7,
27, 46 n. 258, 49, 52, 146 n. 56, 146 n. 57, 147 n. 58, 187 nn. 109–114
Trial of Sgt Maj Ito Junichi (No 1) (HKWCT Collection, File No WO235/914) . . . . . . .23 n. 62,
27, 52, 57 nn. 317–18, 125 n. 164, 183 nn. 79–82, 213 n. 66
Trial of Sgt Maj Ito Junichi (No 2) (HKWCT Collection, File No WO235/1048) . . . . . . . 27, 50,
52, 57 n. 318, 63 nn. 369–70, 125 n. 164, 213 n. 67
Trial of Lt Gen Ito Takeo (HKWCT Collection, File No W0235/1107). . . . . . . . . . . . 27, 50, 53,
97 n. 6, 99 nn. 22–3, 106 n. 56, 128 n. 184, 133 n. 215, 215
Trial of Sgt Kaname Kawamoto (HKWCT Collection, File No WO235/921) . . . . . . . . . .21 n. 52,
27, 34 n. 152, 46 n. 257, 49, 52, 61–2 nn. 356 –7,
146 nn. 54–5
Trial of Lt Col Kanazawa Asao (HKWCT Collection, File No WO235/1093). . . . . . . . . 6, 27, 50,
53, 61 n. 350, 64 nn. 373–5, 66 n. 393, 109,
113 nn. 96–98, 114 n. 99, 115, 118, 120, 124 n. 160,
125 nn. 167–9, 133, 186 nn. 102–5, 208
Trial of Lt Kishi Yasuo and fourteen others (HKWCT Collection,
File No WO235/993) . . . . . . . . . . . . . . . . . . 6, 23 n. 62, 26 n. 86, 27, 29 n. 98, 33 n.142,
33 nn. 144–5, 36 n. 161, 48 n. 271, 49, 52, 55 n. 306, 56,
57 n. 313, 66 n. 391, 67 n. 396, 67 n. 396, 97 nn. 10–11,
118 n. 125, 124 n. 158, 128 nn. 185–8, 129 nn. 191–3,
129–30 nn. 194–9, 131 nn. 201–8, 132 nn. 209–13,
133 n. 214, 134, 138, 147 nn. 61–3, 148 nn. 64–5,
156, 160, 191 n. 142, 192 nn. 143–9
Trial of Sgt Maj Kuwaki Kiyomori and Sgt Nakajima Tokuzo (HKWCT
Collection, File No WO235/1106) . . . . . . . . . . . . . . . . . . . . . . .27, 50, 53, 59 nn. 334–335
Trial of Sgt Kuwano Nobuyuki (HKWCT Collection, File No WO235/1078) . . . . . . . . . . 27, 50,
53, 59 n. 337
Trial of Kyoda Shigeru (HKWCT Collection, File No WO235/1114) . . . . . 13 n. 4, 25, 26 n. 83,
26, 27, 33 n. 139, 38 nn. 183–4, 40,
43 nn. 226–7, 46 n. 256, 50, 51 nn. 281–2,
52, 55 n. 301, 55 n. 306, 56 n. 310, 56 n. 312, 59 n. 36,
60 n. 338, 61 n. 350, 69 n. 408, 193 nn. 155–7
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