Michigan War Studies Review
Reviews, surveys, original essays, and commentary in the field of military studies.
24 October 2014
Review by Georgina Fitzpatrick, The University of Melbourne Law School
Hong Kong's War Crimes Trials
Ed. Suzannah Linton
New York: Oxford Univ. Press, 2013. Pp. xxx, 264. ISBN 978–0–19–964328–8.
Descriptors: Volume 2014, 20th Century, World War II, War Crimes Print Version

Between March 1946 and December 1948, Britain conducted forty-six trials of Japanese military personnel in Hong Kong, prosecuting war crimes committed against prisoners of war (POWs), sick and wounded captives, medical personnel, and civilians in occupied territories. The British also held trials in Singapore, British North Borneo, Malaya, and Burma.[1] In the absence of an extended history of all the British-run trials, the articles gathered in Hong Kong's War Crimes Trials, which study one set in detail, are most welcome.

The major post-World War II trials of the "A" class war criminals at Nuremberg (the International Military Tribunal) and Tokyo (the International Military Tribunal of the Far East) have been intensively studied with regard to their political backgrounds, procedures, participants, legal issues, and final judgments. Historians and other scholars have not, however, given the same level of attention to the so-called minor trials of "B" and "C" class war crime suspects. This is a surprising omission, since over 2,240 trials[2] of Japanese military personnel were conducted by Australia, Britain, France, Netherlands, Philippines, China (both nationalist and communist), the Soviet Union, and the United States at many venues in the Asia-Pacific region between 1945 and 1951.[3] Until recently, little research on these has been published since Philip R. Piccigallo's overview[4] in 1979 until recently. However, historians and international law experts have rediscovered the minor trials, partly because transcripts and archival sources are now more easily available, but also because these historic trials were precursors of later war crimes trials and tribunals. The volume reviewed here is a product of this belated interest.

Edited by Suzannah Linton (Bangor Univ. Law School), creator of the Hong Kong War Crimes Trial Collection database and website, the book comprises an introduction (by Linton) and six essays, five by international law experts, and one by a historian. These authors' insights reflect their different disciplines and professional experiences. Although the assembled essays are meant chiefly for readers with an interest in international criminal law and procedure, historians of the aftermath of the Second World War will find that they throw light on a neglected area of their subject.

The most accessible legal chapter for nonspecialists is "Trial Procedure in the British Military Courts, Hong Kong, 1946–1948" by Alexander Zahar (Macquarie Univ. Law School), who argues that the justice offered Japanese suspects was set at a much lower standard than that accorded British servicemen by courts-martial, the ostensible procedural model for the British trials. To avoid anachronistic thinking in describing the trials, Zahar concentrates on three elements in hopes of assessing them on their own terms: the degree of departure from the court-martial procedure of the time, the degree of compliance with the stated principles governing the trials, and the rather summary abandonment of the trials (19).

The picture that Zahar paints of the British approach to the trials reveals interesting differences from, for example, Australia's war crimes trials. As he notes, for instance, in the British trials in Hong Kong, there were no judges-advocate in attendance to advise court members on points of law; their role was merely to review the files. Since the requirement that Court Presidents be legally qualified was set aside in nine of the forty-six cases, the services of judges-advocate would have been helpful, as they very often proved to be at the Australian trials. Indeed, Zahar maintains that the absence of judges-advocate damaged the integrity of the British trials (28). And, too, the British officers appointed to the defense often lacked legal training and performed their duties poorly (46). By contrast, at the Australian trials, officers of the Australian Army Legal Corps either conducted the defense themselves or worked closely with Japanese defense lawyers. Zahar's close study of British procedures in the Hong Kong trials will facilitate further useful comparative work.

Although Zahar addresses the orientalist mentalité of the British and its possible impact on their trials of Japanese suspects, he concludes that

Many obstacles to procedural fairness were systemic—they went beyond the full control of the Presiding Judges. For example, cross-examination was not legally guaranteed: even the evidence of key Prosecution witnesses could be introduced in written form. Overall, speed was at least as important a consideration in the Hong Kong trials as the appearance of justice. Possibly the British Government could not spare the resources to fund a better system; whatever the practical difficulties, though, we can be confident that the procedural standard experienced by the Japanese accused was much lower than that which applied to British servicemen at the time. (66)

Historian Yuma Totani (Univ. of Hawaii) continues her fine work on war crimes trials[5] with an essay on the "The Prisoner of War Camp Trials." Five questions frame her investigations: who was to blame for the widespread mistreatment of POWs? Why were camp facilities so woefully inadequate? Did primary culpability lie with the camp guards or their superiors? Did the central government of Japan sanction unlawful treatment of prisoners? And, why were high-ranking prisoners assigned to segregated camps (73)?

In her characteristically penetrating and intelligent prose, Totani presents four case studies. Three concern the trials of successive commandants of the POW camps in colonial Taiwan. The fourth explores the trial of Col. Tokunaga Isao, commandant of all the POW camps in Hong Kong. In her analysis of the Tokunaga trial, Totani provides an interesting and possibly unexpected Canadian context. She explains, for example, why Canadian troops were among the victims. However, her main focus is to consider the question of responsibility for the appalling conditions in the Hong Kong camps. Her conclusion is that Tokunaga, as commandant from January 1942 to August 1945, could be held accountable for the running of the camps. However, the Japanese War Ministry and the Governor-General of occupied Hong Kong bore ultimate responsibility for the deplorable conditions in them.

Suzannah Linton, in her piece on "War Crimes," focuses on offenses against civilians in occupied territories. Historians lacking legal training will find her account of the sources of law used by the British tribunals in Hong Kong and the instruments that Japan had signed and/or ratified very useful. Having established that the trials were governed by a combination of international law, British military law, and English common law (106), Linton applies a framework of current international law concerning "deportation" or "torture" to the actions of the Japanese in 1942–45. This may be too recondite for readers without juris doctorates, a comment equally applicable to three other essays in this collection.[6]

Rounding out the collection is an appendix containing an edited transcript of interviews Linton conducted in 2011 with the nonagenarian Maj. Murray Ormsby (d. 2012) who was either a panel member (judge) or the prosecutor at twenty-seven of the Hong Kong trials. Seventy years on, there are few such surviving participants.[7] Therefore Ormsby's account, subject to the usual precautions about oral histories, is a precious source for historians. Students of war crimes trials will wish the editor had included an essay on the individuals who ran the trials, their recruitment, qualifications, and trial experience.

It is unfortunate that the digitized transcripts of the Hong Kong trials are currently not available outside Hong Kong. Until they are, researchers will have to consult the original transcripts at the British National Archives.[8] However, Totani, Linton, and other authors in the volume are to be commended for citing specific slide numbers in the digitized set, as an aid to future researchers. The essay collection includes a good general index, an index of names, and useful tables of personnel, statistics, court-martial procedures, and trial lengths.

A few quibbles: since Australia held thirteen separate trials of its own in Hong Kong during 1948, the adjective "British" should have been used in the book's title to avoid confusion or conflation of the two sets of trials.[9] Also, the inconsistent word order used for Japanese names may cause confusion when consulting the table of cases which are listed by surname.

These minor flaws aside, the book's thematic approach to studying the Hong Kong trials ensures that it will be of great interest to both historians and legal scholars. Together with the ancillary materials provided online at the Hong Kong's War Crimes Trials website,[10] it is an extremely useful addition to our growing understanding of the "B" and "C" class war crimes trials held after the Pacific War.

[1] For an overview of the trials, see Hirofumi Hayashi, "British War Crimes Trials of Japanese," Nature-People-Society: Science and the Humanities 31 (July 2001).

[2] This number will be revised when the individual countries have completed their studies of the trials they conducted.

[3] Concluding with the twenty-six trials on Manus Island in 1951, the last of the three hundred trials prosecuted by Australia in eight locations.

[4] The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951 (Austin: U Texas Pr, 1979).

[5] See The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (Cambridge: Harvard U Pr, 2008).

[6] Nina H. B. Jorgensen, "On Being 'Concerned' in a Crime: Embryonic Joint Criminal Enterprise?"; Bing Bing Jia, "The Plea of Superior Orders in the Hong Kong Trials"; and Roger S. Clark, "Concluding Thoughts."

[7] Only about six personnel from the three hundred Australian trials could be traced in 2009–10: one was a court stenographer, the others interpreters. No legal personnel could be located.

[8] By contrast, the digitized proceedings of all three hundred Australian trials are internet accessible at the website of the National Archives in Canberra.

[9] Historians have also sometimes conflated the concurrent but separate sets of Australian and British trials held in Singapore.

[10] The website includes the interviews with Major Ormsby and other eyewitnesses, as well as photographs, statistics, essays, and other materials of interest to those exploring war crimes trials.

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