Civil disobedience: Lessons of courage from HK war crimes trials

March 18, 2015 07:00
Japanese war criminals prepare for their transfer to Stanley Prison in Hong Kong. Photo:

The general belief is that “the trial of Japanese war criminals” is confined to the historic Tokyo War Crimes Trial. Lesser known is the fact that Hong Kong held trials for 123 Japanese and Taiwanese suspected of crimes committed during the World War II (“Hong Kong War Crimes Trials” or “The Hong Kong Trials”).

The Hong Kong Trials formed part of the national or military proceedings held across the Asia-Pacific region and Europe against war criminals categorized as “B class” and “C class”. Compared with the Tokyo Trial, which pursued justice against only 28 Japanese “A Class” war criminals (subsequently reduced to 25), the special military courts established by eight individual allied nations at 51 locations across the Asia-Pacific region tried around 5,700 B Class and C Class suspects between 1945 and 1951 (“The Minor Trials”). Despite the large volume of the Minor Trials, they remain largely neglected until recent revival of research interest in the Asia-Pacific.

For more than five years, Professor Suzannah Linton had been teaching public international law, international human rights and humanitarian law at the Faculty of Law of the University of Hong Kong. Lamenting that “generations of students, passing through the corridors of its eminent law schools, have not been taught that there were historic war crimes trials in Hong Kong”, Professor Linton decided to investigate the original trial records of the Hong Kong Trials from the perspective of international law.

The original trial records had been declassified in 1978, sitting quietly on the shelves of WO 235 Collection at the United Kingdom National Archives in Kew. The book Hong Kong’s War Crimes Trials, published in late 2013 by Oxford University Press, was built upon the findings of Professor Linton and her colleagues and offered comprehensive analysis of the Hong Kong trials in various aspects, including historical background, procedural and substantive law, and superior responsibility.

Since Hong Kong remained a colony of UK both during the WWII and afterwards (until July 1, 1997), the trials were conducted under British administration and authorized by the British War Office Royal Warrant of June 18, 1945 for war crimes committed across the British colonial territories of Hong Kong, Kowloon, the New Territories, and in Formosa (Taiwan), the Chinese cities of Waichow and Shanghai, Japan and on the high seas after Sept. 2, 1939.

Kevin Zervos, SC, director of Hong Kong public prosecution at the time of the book’s publication, contributed the foreword. In his view, as time passes and administrations change, Hong Kong has become undoubtedly different from its colonial times in many aspects.

However, certain principles have stood unshaken, among which is that the prosecution’s paramount consideration is “commitment to justice and fairness at all times, no matter who the accused may be and no matter what the nature of the crime”.

Facts extracted from the trial records highlight the horror of events almost half a century ago in the prisoners’ camps. We can almost smell the cruelty of war that dehumanized prisoners of war (POWs), but it is still possible to identify inspiring instances that exemplified human virtues that supported some POWs to survive through the stifling darkness of the camps.

“Civil disobedience”, an act that became the focus of discussion in Hong Kong in recent months, proved to be particularly significant in that time of crisis. In the POW camps, intentional mistreatment of prisoners was rampant. POWs with officer rank were subject to even heightened levels of humiliation and physical abuse, partly due to prejudice against the act of surrender and POW status so prevalent in Japanese society.

Captain Kenneth M A Barnett, himself a POW, fearlessly communicated in French with a Japanese-escorted representative of the International Committee of the Red Cross about inadequate rations. As a result, the officer detainees’ rations were raised, but the cost for Barnett was “seven consecutive days of severe beatings and solitary confinement".

This reminds me of an anecdote about Nelson Mandela successfully demanding long trousers (for the sake of dignity) during his imprisonment at the risk of harsh punishment. The courage displayed by Mandela, an internationally renowned figure, and Captain Barnett, an unknown POW, shows that civil disobedience is not a quality unique to celebrated heroes. All of us may possess the courage to disobey an order manifestly illegal, though in a civil manner. 

The recent attention being given to this unduly neglected part of history is gratifying, as the general public, both in Japan and China, still allows their sentiments -- sometimes distorted by ideological belief or propaganda -- to overcome facts and reason.

The increasingly interdisciplinary approach taken by lawyers and historians is helpful to truly depict an episode of World War II history that somehow has been deliberately avoided. However inconvenient the truth might be, for either the victor or the vanquished, both sides need to be truthful about the past to initiate constructive dialogue, create room for mutual understanding and embark on a collective healing process.

From a young Chinese lawyer’s perspective, the book represents a special gift from an older generation of international law scholars that exemplifies meticulous archival research, fine interdisciplinary methodology, and the attitudes that responsible lawyers may take in the midst of highly emotional or politically driven debates.

The value of Professor Linton’s project on Hong Kong’s War Crimes Trials transcends the book itself, as she and her team created a permanent database (click here) to house digital copies of the original trial records collected from the British Archives and various other sources. Indeed, the publication of Hong Kong’s War Crimes Trials marks not the end but the start of a larger process. It is to us the authors of this book have passed the torch.

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