You are on page 1of 46

Singapore Law Review

(2016) 34 Sing L Rev

AN OVERVIEW OF THE SINGAPORE WAR CRIMES


TRIALS (19461948): PROSECUTING LOWER-LEVEL
ACCUSED

CHEAH W L*

21 January 1946. The first British war crimes trial in Southeast Asia is about to begin
in Singapore's Supreme Court that stands with its grand Corinthian columns in
Singapore's city centre. Only a few months ago masses had gathered in front of the
courthouse, on the field also known as the Padang, to witness the Japanese surrender
to the returning British. Today, the courthouse bustles with activity again. Military
personnel, Allied observers, news cameramen, and reporters jostle among members of the
public in the courtrooms gallery. All eyes are on the ten accused marched by armed
guards into the court. The accused enter the dock, bow, and stand to attention. They
wear identical plain pants and shirts. They have signs numbered from one to ten for
identification. At the bench, three British military judges take their places. Two judges
are British, and one judge is of Indian ethnicity. The presiding judge calls the court to
order and declares that the accused will be treated in accordance with the principles of
British justice.1

* Assistant Professor, Faculty of Law, National University of Singapore. This article was
prepared for the launch of the Singapore War Crimes Trials Web Portal. The Portal is
generously funded by National Heritage Board and Singapore Academy of Law, and its
launch is co-organised by the Singapore Law Review. Thank you to the anonymous peer
reviewer for insightful comments and the editors of the Singapore Law Review for their
impressive professionalism. My most heartfelt thanks to my project collaborator and friend,
Ng Pei Yi, and the wonderful research assistants who helped bring this web portal project
to fruition.
1
This description is based on an account of the trial in The Straits Times (hereinafter Straits
Times). South-east Asias first war crimes trial opens, The Straits Times (22 January
1946). The description here is based on the authors own words and reading of the Straits
Times account. The full and original trial transcripts and trial-related records are at The
National Archives of the UK (hereinafter TNA). TNA staff have entered sequential
2 Singapore Law Review (2016)

Thus began the trial Gozawa Sadaichi and others, the first of 131 war crimes trials
held by the British in Singapore after the war (hereinafter the Singapore Trials).
Apart from the more well-known Nuremberg and Tokyo Trials, hundreds of other
war crimes trials like Gozawa Sadaichi and others were organised by individual
Allied Powers after the war.2 In Singapore, the British conducted war crimes trials
(the Singapore Trials) pursuant to a 1945 Royal Warrant adopted by the British
executive under royal prerogative powers [1945 Royal Warrant].3 From 1946 to
1948, the British tried over 400 accused linked to the Japanese military in
Singapore for war crimes committed not only in Singapore but throughout Asia.
The majority of these accused were from Japan. A small minority were from Korea
and Formosa or present-day Taiwan. These Singapore Trials took place alongside
hundreds of other Allied and national war crimes trials in Asia, organised by
Britain, the US, the Netherlands, China and Australia.4 Similar trials of Axis

pagination on most records. I use this pagination as reference, placing SP before the
number. Japanese names used in this article are as reflected in British records, though
glaring errors have been amended to the extent possible, with family name placed before
first name according to convention.
2
There has been much scholarship on the Nuremberg Trial. An example of a detailed
account of the Nuremberg Trial would be Ann Tusa & John Tusa, The Nuremberg Trial
(New York: Skyhorse Publishing, 2010). There has previously been more focus on the
Nuremberg Trial than the Tokyo Trial. However, there have been a number of important
studies of the Tokyo Trial in recent years: Yuma Totani, The Tokyo War Crimes Trial: The
Pursuit of Justice in the Wake of World War II (Harvard University Asia Center: Harvard
University Press, 2008); Neil Boister & Robert Cryer, The Tokyo International Military
Tribunal: A Reappraisal (New York: Oxford University Press, 2008); Yuki Tanaka,
Timothy LH McCormack & Gerry Simpson, eds, Beyond Victors Justice? The Tokyo War
Crimes Trial Revisited (Leiden: Martinus Nijhoff, 2011).
3
Royal Warrant 0160/2498, 18 June 1945, promulgated by the War Office, Army Order
81 of 1945, available at www.legal-tools.org/doc/386f77/ (hereinafter The 1945 Royal
Warrant). The Royal Warrant contained a list of regulations (hereinafter Regulations for
the Trial of War Criminals). In Asia, British war crimes trials were also governed by an
army instruction issued by the British military operating in this area, namely, Allied Land
Forces, South-East Asia (hereinafter ALFSEA). Note that from 1 December 1946,
ALFSEA was reorganised into South-East Asia Land Forces (hereinafter SEALF). Allied
Land Forces, South-East Asia, War Crimes Instruction No. 1 (2nd Edition), 4 May 1946,
TNA, WO 203/6092 (hereinafter, referred to as ALFSEA Instruction No. 1).
4
For a recent account of Allied trials in Asia using archival material, see Yuma Totani,
Justice in Asia and the Pacific Region, 1945-1952: Allied War Crimes Prosecutions
(Cambridge: Cambridge University Press, 2015).
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 3

personnel were conducted by the Allies and other national governments in


Europe.5 While the general public continues to be most familiar with the
Nuremberg and Tokyo Trials, it is important to bear in mind that the Nuremberg
and Tokyo Trials took place alongside these many other war crimes trials. The
Tokyo and Nuremberg Trials prosecuted only on a small number of high-ranking
Axis leaders. The bulk of war crimes suspects were tried in national war crimes
trials like the Singapore Trials.
This article aims to introduce readers to the Singapore Trials that continue to
be relevant for historical and legal reasons. The Second World War irrevocably
changed the course of history and the lives of survivors. Even so, many of
Singapores Second World War stories remain untold as mainstream historical
narratives continue focus on the failure of the British to defend Singapore, and
Singapores subsequent road to independence.6 In these narratives, ordinary
Singapore residents are generally portrayed as passive victims, abandoned by the
British and then abused by the Japanese. The Singapore Trials by featuring locals
who stepped forward as witnesses, lawyers, and trial critics highlight the agency
and contributions of ordinary people and thus enrich our historical understanding
of post-war Singapore. Such a broader and deeper appreciation of history also

5
For examples of recent case studies on post-Second World War trials in Europe, see
Christian Ppken, Towards the Domestic Prosecution of Nazi Crimes Against Humanity:
The British, Control Council Law No. 10 and the German Supreme Court for the British
Zone, 1947-1950 in Morten Bergsmo, Cheah Wui Ling & Ping Yi, eds, Historical Origins
of International Criminal Law, vol 2 (Brussels: Torkel Opsahl Academic EPublisher, 2014)
427; Ditlev Tamm, Prosecution of War Criminals in the North: Danish and Norwegian
Experiences after the Second World War in Bergsmo, Cheah & Yi, 471; Immi Tallgren,
Martyrs and Scapegoats of the Nation? The Finnish War-Responsibility Trial, 1945-
1946 in Bergsmo, Cheah & Yi, 493; Mark A Drumbl, The Supreme National Tribunal
of Poland and the History of International Criminal Law in Bergsmo, Cheah & Yi, 563.
6
Blackburn observes that the Second World War narratives in Singapores history and
social studies textbooks link the fall of Singapore and Japanese wartime occupation to the
need for Singaporeans to be prepared to defend their own country. Kevin Blackburn, War
memory and nation-building in South East Asia (2010) 18:1 South East Asia Resarch 5 at 8.
Loh observes that while recent research has introduced actors apart from the Peoples
Action Party into the post-war Singapore history, there is still a focus on political elites and
the need for more research on the experience of ordinary people. Loh Kah Seng, Kampong,
fire, nation: Towards a social history of postwar Singapore (2009) 40:3 Journal of Southeast
Asian Studies 613 at 615-616.
4 Singapore Law Review (2016)

contributes to better understanding of contemporary debates in Asia as many


ongoing disputes in the region are driven by historical arguments.7 Singapores
political and intellectual leaders have emphasised how post-war rapprochement
and economic cooperation have contributed to regional growth and stability.8
However, for there to be genuine and enduring reconciliation, it is also necessary
to confront and understand questions of justice. These trials and their facts are
uncomfortable, and their discussion may attract contestation. Nevertheless,
examination and dialogue rather than denial are essential for peace and the
prevention of future conflict.
Apart from their historical value, the Singapore Trials also hold insightful legal
lessons. When distilling these legal lessons, care and contextualisation is necessary
because these trials took place against a very different legal landscape. These courts
also did not issue comprehensive judgments, so it is difficult to conclusively
determine the legal grounds for judicial decisions. In addition, many of the legal
categories and ideas familiar to todays international criminal law experts did not
yet exist at the time of these post-war trials. With these factors in mind, this article
explores one particular feature of the Singapore Trials, namely, the trials focus on
defendants holding low to mid-level ranks.9 The British initially adopted a

7
An example linked to the Second World War would be the Japanese governments earlier
longstanding inconsistent approach to Second World War victims like the comfort
women. For some positive developments on this issue with respect to Japan and Korea in
late 2015, see Choe Sang-Hun, Japan and South Korea Settle Dispute Over Wartime
Comfort Women, The New York Times (28 December 2015). Another example of an
ongoing dispute based on historical arguments would be the ongoing territorial dispute
between China, Vietnam, the Philippines, Taiwan, Malaysia and Brunei in the South
China Sea. Why is the South China Sea contentious, BBC (12 July 2016).
8
Ministry for Culture, Community and Youth, Speech by Lawrence Wong, Minister for
Culture, Community and Youth, Commemorating the 70th Anniversary of the end of
World War II, (27 August 2015), online: <https://www.mccy.gov.sg/en/news/speeches/
2015/Aug/WWII_Commemorative_Event.aspx>; Walter Woon, Speech at Remembrance
Ceremony, Kranji War Memorial, 12 September 2015, copy on file with author.
9
Besides military personnel, the Singapore Trials also tried a number of civilians and police
officers. One of the highest ranking military accused in the Singapore Trials, Nishimura
Takuma, was in charge of an army division. None of the accused held the rank of general
and none of them were in charge of armies. The military accused in the Singapore Trials
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 5

comprehensive approach to war crimes prosecutions, and though the scope of these
prosecutions was eventually narrowed, a range of low- to high-ranking personnel
were tried.10 The lowest ranking military defendants in the Singapore Trials were
guards and privates while the highest ranked defendants were lieutenant generals
and a vice admiral. The majority of military defendants prosecuted in the
Singapore Trials held low to mid-level positions of responsibility. These lower-level
prosecutions differed from the prosecutions undertaken at Nuremberg and Tokyo.
The British authorities prosecution of such large numbers of lower-level accused
in Singapore was enabled by the 1945 Royal Warrants expeditious and relatively
informal trial model. This trial model is not without serious flaws when assessed
against present-day legal standards, but its general approach and lighter design is
pertinent given todays criticism of lengthy war crimes trials.11
This article thus has two broad objectives. First, it aims to reconstruct and
describe the Singapore Trials in a context-sensitive manner. It underscores the
wide-ranging prosecutions and the informal approach of these trials, and focuses
particularly on trials of infamous war crimes in Singapore. Second, this article
examines trial discussions about the individual accountability of low to mid-level

were thus largely responsible for operational issues or specific tasks as opposed to the
direction of war or overall strategy.
10
Indeed, as observed by Cribb, despite the numerous obstacles encountered by the Allies
when organising war crimes trials, these trials punished perpetrators on a scale not seen
before or since. Robert Cribb, How finished business became unfinished: Legal, moral
and political dimensions of the Class B and C war crimes trials in Asia and the Pacific
in Christina Twomey and Ernest Koh eds, The Pacific War: Aftermaths, remembrance and
culture (New York: Routledge, 2015). For an analysis of the scaling down of British trials
and clemency program, see R John Pritchard, The Gift of Clemency following British
War Crimes Trials in the Far East, 1946-1948 (1996) 7:1 Crim LF 15. British war crimes
trials were later scaled down and concluded for political reasons, in line with the US desire
to rehabilitate Japan - see Pritchard at 18. See also Chart 1 Singapore War Crimes Trials:
Ranks of accused (army) and Chart 2 Singapore War Crimes Trials: Ranks of accused
(navy), appended.
11
For example, the International Criminal Courts [ICC] first case against Thomas
Lubanga Dyilo, Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06 took more than 8
years. Investigations began on 21 June 2004. The decision and sentence was confirmed on
appeal on 1 December 2014. For a summary of the case, see ICC website: https://www.icc-
cpi.int/drc/lubanga. Internationalised courts like the ICC have taken active steps to increase
trial efficiency.
6 Singapore Law Review (2016)

accused. These discussions will be of increasing interest as accountability for war


crimes and core international crimes becomes more common in the future,
resulting in less exceptional trials or justice processes that go beyond targeting
leaders and main perpetrators.12
In undertaking these two objectives, this article proceeds as follows. Part I
positions the Singapore Trials against other war crimes trials implemented in the
aftermath of the Second World War. Part II brings us to post-war Singapore and
examines the socio-political and legal context of the Singapore Trials. Part III then
studies trials of infamous Singapore atrocities. It explores trial discussions about
culpability for omissions, the relevance of organisational membership, and the
impact of superior orders. The article concludes by discussing the historical and
legal insights that may be gleaned from the Singapore Trials.

I. THE ROAD TO WAR CRIMES TRIALS IN ASIA

During the war, the US, Britain, the Soviet Union and China adopted a declaration
at the 1943 Moscow Conference proclaiming their intention to act together on
matters relating to the surrender and disarmament of their common enemy.13
At the same Moscow Conference, the US, Britain and the Soviet Union also
adopted a Statement of Atrocities.14 In this Statement, the Allies declared their
intention to punish German and Nazi war criminals based on two organisational
principles: first, those suspected of war crimes would be sent back to the countries
where they had committed their crimes and judged on the spot by the peoples
whom they have outraged; second, those whose crimes had no particular

12
For a succinct and persuasive account of how international criminal law prosecutions
will move from internationalised courts to domestic courts in the future, see Morten
Bergsmo, Complementarity and the Challenges of Equality and Empowerment (2011)
FICHL Policy Brief Series No. 8.
13
Declaration of the Four Nations on General Security, Moscow Conference of Foreign
Secretaries 1943, signed 30 October 1943.
14
Statement of Atrocities, Declaration of the Four Nations on General Securities, Moscow
Conference of Foreign Secretaries 1943, signed 30 October 1943 [1943 Statement of
Atrocities].
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 7

geographical localization would be punished by joint decision of the government


of the Allies.15 It is noteworthy that none of these documents stated how such
punishment and judgement was to be meted out.
The Allies also established the United Nations War Crimes Commission
[UNWCC] in 1943.16 The UNWCC collected evidence on Axis war crimes and
drew up lists of suspected war criminals for Allied prosecution after the war.17 In
1944, a sub-commission of the UNWCC was established in Chungking to focus
on the investigation of Japanese atrocities.18 During this time, Allied leaders
continued to debate whether Axis war criminals should be summarily executed or
tried. Most leaned in favour of the former. Nevertheless, in 1945, US President
Franklin Roosevelt decided on trials and persuaded his Allied counterparts to adopt
the same position. Roosevelts decision was in response to the American publics
outcry over leaked details of the Morgenthau Plan. This plan, designed by US
Secretary of the Treasury Henry Morgenthau, proposed inter alia the post-war
pastoralisation of Germany and the summary execution of about 2500 Nazi
personnel.19 The American public severely criticised this plan. In the face of such
vehement public opposition, Roosevelt decided that Nazi personnel should be tried
instead.20
Before 1945, many British government officials including Prime Minister
Winston Churchill leaned towards the summary execution of high-ranking
German personnel. Most British leaders were however of the view that such

15
Ibid.
16
For the official record of the UNWCCs work, see United Nations War Crimes
Commission, History of the United Nations War Crimes Commission and the Development of
the Laws of War (England: His Majestys Stationery Office, 1948).
17
Dan Plesch & Shanti Sattler, Before Nuremberg: Considering the Work of the United
Nations War Commission of 1943-1948 in Morten Bergsmo, Cheah Wui Ling and Ping
Yi, eds, Historical Origins of International Criminal Law, vol 1 (Brussels: Torkel Opsahl
Academic EPublisher 2014) 437 at 450.
18
Ibid at 456.
19
Gary Bass, Stay The Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton:
Princeton University Press, 2002) at157-158.
20
Ibid at 169.
8 Singapore Law Review (2016)

summary executions should not extend to lower-ranking German personnel.21 At


the 1943 Moscow Conference, Soviet Unions leader Joseph Stalin had declared
his wish for 100 000 German soldiers to be summarily shot at the end of the war.
Churchill had blanched at this suggestion. The American minutes of this meeting
describe Churchills strong reaction to Stalins proposed mass executions,
criticising this as a cold blooded execution of solders who had fought for their
country.22 Churchill advocated a smaller number of summary executions, namely,
50 to 100 high-ranking Nazi personnel.23 Churchills suggested summary
executions was criticised by some in the British government and up till 1944,
British leaders were unable to agree on what should be done, settling on a middle
course of summarily executing high-ranking Axis personnel and prosecuting
lower-ranking Axis personnel.24 The US, after changing its position to that of trials,
pressured Britain to take a similar position.25 In May 1945, the British government
aligned its position to that of the US and committed to the holding of trials.26
The British continued to distinguish between higher-ranking and lower-
ranking Axis personnel when organising post-war trials. The British Foreign Office
dealt with the former while the British military was in charge of the latter. In Asia,
trials of the latter were conducted pursuant to the 1945 Royal Warrant and fell
within the responsibility of Allied Land Forces South East Asia [ALFSEA].27 The
British also specifically recognised that the 1943 Statement of Atrocities, which
addressed Nazi crimes, applied to Japanese crimes in Asia. At a War Office meeting
on 12 October 1945, it was decided that war crimes prosecutions in Asia would be
separately controlled but framed on a similar pattern to that in Europe as set

21
Ibid at 181.
22
Ibid.
23
Ibid.
24
Ibid at 187.
25
Ibid at 189.
26
Ibid at 191.
27
While the word Allied is used, ALFSEA was largely a British operation.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 9

out in the 1943 Statement of Atrocities.28 Specifically, [m]ajor war criminals


would be segregated and tried by a suitable tribunal while [m]inor war criminals
would be tried by each nation in their respective territories.29
On 29 August 1945, the UNWCC expressly applied the principles adopted at
the 1943 Moscow Conference to Japanese atrocities, recommending that those
Japanese who have been responsible for [] crimes and atrocities committed in,
or against the nationals of, a United Nation be apprehended and sent back to
the countries in which their abominable deeds were done or against whose
nationals crimes or atrocities were perpetrated in order that they may be judged in
the courts of these countries and punished.30 Allied intentions to pursue justice
for Japanese atrocities were most clearly communicated to Japan in the 1945
Potsdam Declaration issued by the US, Britain, and China on 26 July 1945.31 This
declaration contained the terms of surrender offered by the Allies to Japan, and
stated that while the Allies did not intend that the Japanese shall be enslaved as a
race or destroyed as a nation, stern justice would be meted out to all war
criminals.32 Japan accepted the Potsdam Declarations terms of surrender on 2
September 1945.
Thus, upon Japans surrender, the Allies began organising war crimes
investigations and prosecutions throughout Asia. At the Tokyo Trial, the Allies
prosecuted only 28 high-ranking Class A suspects from various government and
military departments on charges linked to the waging of war and war crimes.33
Hundreds of lower-ranking Class B and Class C suspects of diverse ranks were

28
Record of a Meeting held in Room 243, Church House, at 16.00 hours on Friday, 12th
October 1945, to discuss Japanese War Criminals, 225 (A.G.3 (V/1), TNA, WO 203/5594
at 1, para 2.
29
Ibid.
30
United Nations War Crimes Commission, Summary Recommendations concerning
Japanese War Crimes and Atrocities, Note by the Secretary General, C.145(1), 29 August
1945, at 2, III.
31
Proclamation Defining the Terms for the Japanese Surrender, US-China-UK, signed July
1945 [Potsdam Declaration].
32
Ibid at para 10. Note that the Potsdam Declaration did not detail how such stern justice
should be meted out.
33
Totani, The Tokyo War Crimes Trial, supra note 2 at 65.
10 Singapore Law Review (2016)

prosecuted at other Allied trials operating across Asia.34 It is hard to arrive at the
exact number of Allied trials held in Asia, as there continues to be access restrictions
to some national trial records. Some latest estimates of the number of war crimes
trials held by different national authorities in Asia are as follows: China (605 trials),
the US (456 trials), the Netherlands (448 trials), Britain (330 trials), Australia (294
trials), the Philippines (72 trials), and France (39 trials).35 In 1956, China
prosecuted another four cases involving 1062 defendants, out of which 45 were
sentenced and the rest acquitted.36 The Allies conducted these trials before military
courts pursuant to national laws of the Allied Power concerned.37 Altogether 2244
war crimes prosecutions were conducted in Asia. 5700 defendants were prosecuted:
984 defendants were executed; 3419 sentenced to imprisonment; and 1018
acquitted.38
The British conducted 330 trials in Asia. Of these, 131 trials were conducted
in Singapore. To give readers an idea of when the different Allied trials began and
ended, the first British war crimes trial, Joseph Kramer and Forty-Four Others or the

34
In practice, Class A war criminals referred to those charged with crimes against peace as
the definition of crimes against peace appeared in section A of the US policy document
setting out prosecutorial policy, while Class B and Class C war criminals referred to those
charged with war crimes and crimes against humanity as the definition of these crimes
appeared in sections B and C of the same document. For a more detailed explanation,
see Totani, The Tokyo War Crimes Trials, supra note 2 at 22-23.
35
Barak Kushner, Men to Devils, Devils to Men: Japanese War Crimes and Chinese Justice
(Harvard University Press, 2015) at 9.
36
Ibid.
37
For a general comparative overview of the various trials and the national laws pursuant
to which military courts were established in Asia, see Philip R Piccigallo, The Japanese On
Trial: Allied War Crimes Operations in the East, 1945-1951 (Austin: University of Texas
Press, 2011). For ground-breaking work on Allied national trials: (Chinese trials) Kushner,
supra note 35; (US trials in the Philippines and the Toyoda Trial in Japan) Totani, Justice
in Asia, supra note 4 at 2155, 156178; (Australian trials) Narrelle Morris, Justice for
Asian Victims: The Australian War Crimes Trials of the Japanese, 1945-51 in Kevin Jon
Heller & Gerry Simpson, eds, The Hidden Histories of War Crimes Trials (Oxford: Oxford
University Press, 2013) 348; and Georgina Fitzpatrick, War Crimes Trials, Victors
Justice and Australian Military Justice in the Aftermath of the Second World War in
Heller & Simpson, 327; (French trials) Ann-Sophie Schoepfel-Aboukrat, The War Court
as a Form of State Building: The French Prosecution of Japanese War Crimes at the Saigon
and Tokyo Trials in Bergsmo, Cheah & Yi, supra note 5 at 119.
38
Kushner, supra note 35 at 9.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 11

Belsen Trial, started in Lneburg, Germany on 17 September 1945.39 In October


and November 1945, American and Australian war crimes trials of Japanese
atrocities began.40 Back in Europe, the Nuremberg Trial commenced on 20
November 1945.41 The British military then organised, two months later on 21
January 1946, the first British war crimes trial in Singapore, Gozawa Sadaichi and
others. A few months after that, on 3 May 1946, the Tokyo Trial began and
continued for two and a half years, finally coming to an end on 12 November
1948.42 Before the Tokyo Trial ended, the last of the Singapore Trials, Mizuno
Keiji, concluded on 12 March 1948.43 The Singapore Trials were thus among the
earliest Allied trials held in Asia, starting well before the Tokyo Trial but coming
to an end before the Tokyo Trial.

II. IMPLEMENTING BRITISH WAR CRIMES PROSECUTIONS


IN SINGAPORE

This part of the article reconstructs the socio-political and legal context of the
Singapore Trials. As explained earlier, the Singapore Trials were conducted by the
British military pursuant to the 1945 Royal Warrant. This instrument was however
relatively vague and open-ended. As detailed below, the Warrant was in fact
supplemented by instructions issued by the army on the ground. Local decisions
and conditions thus influenced the British militarys organisation of the Singapore

39
Lori Charlesworth, Forgotten Justice: forgetting laws history and victims Justice in
British minor war crime trials in Germany 1945-8 (2008) 74 Amicus Curiae 2 at 3.
40
The first trial held by the US authorities was the much-criticised trial of Yamashita, who
was arraigned on 8 October 1945 before an US military court in Manila, the Philippines,
and whose trial began on 29 October 1945 see A Frank Reel, The Case of General
Yamashita, 2nd ed (New York: Octagon Books, 1971) at 27, 33. The first Australian war
crimes trial concerned a case of cannibalism and started in Morotai, Indonsia, on 29
November 1945 see Piccigallo, supra note 37 at 128129.
41
Tusa & Tusa, supra note 2 at 146.
42
Totani, The Tokyo War Crimes Trials, supra note 2 at 78.
43
The full citation information of this trial is WO 235/1110 Defendant Mizuno Keiji,
Place of Trial Singapore. This case will be referred to as Mizuno Keiji.
12 Singapore Law Review (2016)

Trials. For these reasons, it is important to contextualise the Singapore Trials by


revisiting Singapores post-war years.

A. Socio-political Conditions and Challenges in Post-war Singapore

On 12 September 1945, the Supreme Allied Commander of South East Asia


Command [SACSEA] Lord Louis Mountbatten formally accepted Japans
surrender in Singapore. The Allies had agreed that Mountbatten and his South
East Asian Command [SEAC], which commanded ALFSEA, would be responsible
for re-occupying most of Southeast Asia including British Malaya, Ceylon, Burma,
Siam, and Borneo.44 SEAC was also to occupy French Indochina and Dutch
Indonesia until the return of the French and Dutch authorities to their colonies.45
ALFSEA thus had to assume military administration over 1 500 000 square miles
of territory.46 Mountbatten issued Proclamation No. 1 that established and charged
the British Military Administration [BMA] in Singapore with the prevention and
suppression of disorder and the maintenance of public safety.47 In March 1946,
after six months of military administration, civilian administration of Singapore
resumed.48 The British military nevertheless continued performing certain tasks in
Singapore and the region, including the organisation of war crimes trials.
Returning to Singapore after the war, the British had to deal with numerous
humanitarian and political concerns. Post-war Singapore was chaotic. Prisoners of
war [POWs] had to be located and repatriated. There was a severe shortage of food,

44
On 1 December 1945, SEAC was disbanded and ALFSEA reorganised into South-East
Asia Land Forces [SEALF] see UK, HC, Parliamentary Debates, vol 430, col 245-246W
(26 November 1946).
45
Lord Killearn to Foreign Office, 17 June 1946, TNA, CAB 21/1954, para 1. The land
army responsible for post-war occupation was known as Allied Land Forces South East Asia
[ALFSEA], which would be later called South East Asia Land Forces [SEALF] from 1
December 1946 upon the dissolution of SEAC. On 15 August 1947, the SEALF would be
replaced by the Far East Land Forces [FARELF].
46
Ibid at para 14.
47
Proclamation No. 1, issued by Admiral Mountbatten, 15 August 1945, WO 203/5642
at para 1.
48
Kwa Chong Guan, Derek Heng & Tan Tai Yong, Singapore A 700-Year History: From
Early Emporium to World City (Singapore: National Archives of Singapore, 2009) at 153.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 13

basic necessities, and housing. In addition, the British faced increasing resistance
to continued colonial rule. The short-lived wartime honeymoon between the
British and Malayan Communist Party [MCP] soon disintegrated, and the MCP
reverted to its pre-war anti-British stance, demanding more political power and
organising mass strikes.49 The British also encountered resistance and calls for
independence from other segments of society. Prior to the war, such demands for
independence had been largely limited to the elite.50 After the war, political activity
and defiance took on a youthful, militaristic face.51 Matters were further
complicated when the BMA earned a reputation of being corrupt and was
nicknamed the Black Market Administration.52
Despite these administrative and humanitarian challenges in post-war
Singapore, British war crimes investigations were well underway by 1946. The
British military had 17 investigation teams operating throughout Asia, though its
base of war crimes investigations remained in Singapore. Each investigation team
comprised about 15 members and was led by a member holding the rank of
lieutenant colonel. Teams were to have a member who was legally trained, if such
a member was available.53 Civilians could be employed in these teams as
interpreters and shorthand writers. The teams were assigned to various locations
across Asia, including Batavia, Medan, Penang, Shanghai, Bangkok, and Saigon.54
War Crimes Investigation Team No 7 was assigned to Singapore. War crimes
investigators in Singapore worked out of the grand colonial-style Goodwood Park
Hotel that continues to stand along Singapores Scotts Road today.

49
Cheah Boon Kheng, Red Star Over Malaya: Resistance and Social Conflict During and
After the Japanese Occupation of Malaya 1941 1946, 4th ed (Singapore: NUS Press, 2012)
at 241.
50
Nicholas White, Decolonisation: The British Experience since 1945, 1st ed, (Oxford:
Routledge, 1999) at 48.
51
Tim Harper & Christopher Bayly, Forgotten Wars: The End of Britains Asian Empire
(London: Allen Lane, 2008) at 16.
52
C M Turnbull, A History of Singapore 1819 - 1975 (Oxford: Oxford University Press,
1977) at 225.
53
ALFSEA Instruction No. 1 at p 6, para 22.
54
Ibid at p 7, para 23.
14 Singapore Law Review (2016)

Also, as of mid-1946, the British military had established 12 war crimes courts
in Singapore, Kuala Lumpur, Rangoon, Hong Kong, and Borneo.55 Eight of 12
courts established were located in Singapore.56 There were also travelling courts
that made their way to particular locations to hear a case.57 Organising these courts
in post-war Singapore was a challenging enterprise for the British. For example,
the British military had difficulties finding sufficient and appropriate trial venues.
The first war crimes trial was held in Singapores old Supreme Court building.58
However, the British military was soon forced to compete with other government
departments for space. This led to a severe shortage of trial venues. On 16 May
1946, the case of Sugihara Hikaru and another had to be heard under a tent
pitched in the grounds of the Goodwood Park Hotel.59 While the Straits Times
stressed that such an arrangement was only temporary and an emergency
measure, this gives us a good idea of the infrastructural challenges encountered by
the British military.60 The military eventually decided to build six prefabricated
buildings or hutments on the grounds of Changi Gaol to serve as courthouses.
These buildings were to have the old Malayan system of fans the Indian-type
punkah which will be operated by fatigues of Japanese prisoners.61 On a side
note, these Japanese prisoners were probably former Japanese military personnel,
also known as Japanese Surrendered Personnel [JSP]. After the war, surrendered
Japanese military personnel were treated as JSPs rather than POWs. The British
employed JSPs for various reconstruction and security tasks.62 This JSP

55
Ibid at p 8, para 27.
56
Ibid.
57
Piccigallo, supra note 37 at 103-104.
58
Report on the British Military Administration of Malaya, TNA, FCO 141/15329 at 90.
59
War crimes court held under tent, The Straits Times (16 May 1946), 1.
60
Ibid.
61
War trials to be held at Changi Gaol, The Straits Times (1 August 1946), 5.
62
Yoshita Kita, The Japanese Militarys Attitude Towards International Law and the
Treatment of Prisoners of War in Ian Gow et al, eds, The History of Anglo-Japanese
Relations, 1600-2000, Volume III: The Military Dimension (Hampshire and New York:
Palgrave Macmillan, 2003) 255 at 270. The British military distinguished between
Japanese POWs and JSPs. The former were under British control while the latter was under
the control of their Japanese officers.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 15

arrangement allowed the British military to circumvent restrictions placed by the


then-applicable 1929 POW Geneva Convention on the type of work POWs could
undertake, and has since been criticised by scholars.63
These many organisational challenges impacted the morale of British military
personnel in Singapore who felt that their counterparts in London did not fully
appreciate the difficulties they faced. A 12 July 1946 report detailed the multitude
of problems faced by British personnel on the ground:

It is very difficult for those at home to realise the difficulties under


which the war crimes organisation in ALFSEA has to work. The
distances involved are so large, the area so vast. The monsoon
delays all forms of transportation and no one can say that he will
be at a specified place on a particular day. Mail is similarly
affected. Sickness release and repatriation reduce the personnel
strength daily to the detriment of continuity. Everyone works
extremely hard and displayed the greatest enthusiasm as can be
seen from the results. The general feeling is that they want to
complete the work of bringing all Japanese suspects to trial in
order that the maximum number of criminals may be punished
for the atrocities and misdeeds that they committed.64

Despite these many obstacles, the Singapore Trials proceeded apace from 1946
to 1948.65

63
Ibid at 274.
64
War Office to Foreign Office and others, attached report of Major RJH Pope, 15 July
1946, 6, TNA, WO 311/537.
65
The Singapore medias interest in these trials had already started to taper off in 1947.
Simon C Smith, Crimes and punishment: Local responses to the trial of Japanese war
criminals in Malaya and Singapore, 1946-48 (1997) 5:1 South East Asia Research 41 at 46.
16 Singapore Law Review (2016)

B. The Legal Framework and Trial Process of the Singapore Trials:


An Expeditious and Informal Approach

The 1945 Royal Warrant authorised the British military to establish military courts
to try and punish violations of the laws and usages of war committed in any war
that the British had been engaged in after 2 September 1939. The Royal Warrant
came with a set of regulations, but these were very brief in nature. The Royal
Warrants regulations did not state the elements of crimes, defences, or principles
of liability. In Asia, the 1945 Royal Warrant was supplemented by ALFSEA
Instruction No. 1.66 This army instruction set out a list of acts or conduct that
would qualify as war crimes, but the rest of the instruction largely dealt with
procedural and administrative matters rather than substantive law. Nevertheless, as
the Warrant required these courts to be considered Field General Courts-
Martial, trial personnel cited a mixture of international law, British military law,
and English criminal law in these trials.67
Each court established under the 1945 Royal Warrant comprised at least
three judges. Accused were to be represented by counsel and were so represented
in all trials, though counsel usually represented several accused in joint trials. If
defendants were represented by Japanese defence counsel, a defence advisory officer
from the British military would usually be assigned to the defence team to assist on
matters of procedure. These British military courts were authorised to pass
sentences of death, imprisonment, confiscation, and fines.68 Sentences of death
could only be passed with the agreement of all judges when the court was composed
of not more than three judges.69 When the court comprised more than three
members, at least two-thirds of judges including the president needed to agree on
the death sentence.70 Acquittals were final while findings of guilt and sentences had

66
ALFSEA Instruction No. 1.
67
This is a type of court martial used by the British military when operating oversea or in
active service. Regulations for the Trial of War Criminals, regulation 3.
68
Regulations for the Trial of War Criminals, regulation 9.
69
Ibid.
70
Ibid.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 17

to be confirmed by a confirming officer. A person convicted at trial had 14 days


from the end of trial proceedings to submit a petition to be considered by the
confirming officer.71 During this confirmation stage, the Department of the Judge
Advocate General [DJAG] in Singapore would also issue a review report on the
trial for the confirming officers consideration. DJAG review reports on the
Singapore Trials were generally several pages in length. These reports usually
contained a summary of trial proceedings, the facts of the case, and some legal
analysis.
In terms of trial procedure, the 1945 Royal Warrant military courts employed
a common law adversarial process. The 1945 Royal Warrant and ALFSEA War
Crimes Instruction No 1 also authorised these courts to take a less formal approach
to evidence and ensure expeditious proceedings. Two institutional features should
be highlighted at this point for better understanding of these trials. First, the courts
established under the 1945 Royal Warrant were military courts. As mentioned
above, the 1945 Royal Warrant required these courts to be treated as Field
General Courts-Martial unless expressly or by implication required otherwise.72
Field General Courts-Martial were more lightly regulated than other courts-martial
in the British courts-martial system. The 1945 Royal Warrant simplified trial
procedure even further by expressly exempting its military courts from certain legal
requirements that would normally apply to Field General Courts-Martial. The
trials were conducted in a relatively informal manner and were not legalistic. Most
trial participants did not make complicated legal arguments, and courts did not
insist on strict procedural compliance.73
The second thing to note about these 1945 Royal Warrant trials in Asia is that
British leaders intended these trials to be expedited in nature. These courts were to
conduct as many trials as possible over a short period of time. ALFSEA Instruction
No 1 emphasised the summary nature of trials and that justice be administered

71
Regulations for the Trial of War Criminals, regulation 10.
72
Regulations for the Trial of War Criminals, regulation 3.
73
This was also necessary because most judges and lawyers did not hold formal legal
qualifications. Most Japanese defence counsel held Japanese legal qualifications. The British
military faced a severe shortage of qualified legal personnel.
18 Singapore Law Review (2016)

promptly and efficiently by these courts.74 In Singapore, the shortest trial lasted
one day while the longest trial lasted 31 days.75 A trial lasted an average of 6 days.
This is of concern as many of the Singapore Trials were joint trials and of certain
complexity. The largest joint trial in Singapore tried altogether 43 defendants.
Only 12 Singapore Trials dealt with a single accused, and there was an average of
4 accused per trial. Based on military records, the post-trial DJAG review normally
took about a week before a reply was sent to the confirming officer.76 The
confirming officer would then take about several days to consider the trial
documents depending on their nature and length, before the confirming officers
decision was sent to the unit where the accused was attached for promulgation.77
According to estimates offered by the British military, at least a month passed
after the trials conclusion before a death sentence was executed.78 These figures
demonstrate the expeditious nature of the entire trial process.
Trial findings and confirmation decisions in the Singapore Trials show that trial
actors did try to determine guilt and sentences at the individual level,
distinguishing between guilty and innocent persons. 51 accused were acquitted at
the trial stage in the Singapore Trials.79 13 trial decisions were not confirmed and
54 trial sentences were reduced at the post-trial confirmation stage.80 However, the
trials expeditiousness and informality did affect the quality and accuracy of justice.
For example, judges often denied the defence the opportunity to call witnesses if
this meant that the trial had to be postponed. Some court errors identified at the
DJAG review stage could be attributed to the pressure courts experienced for trials
to be completed quickly. The British adopted this informal and expeditious
approach to prosecutions to avoid drawn out war crimes trials. These trials were to

74
ALFSEA Instruction No. 1 at p 11, para 40.
75
This was the case of Otsuka Misao and others, File No WO 235/975 [Otsuka Misao and
others].
76
Davis to Brigadier E L Ridley Thompson, D of O, HQ ALFSEA, 8 March 1946, TNA,
WO 203/5596
77
Ibid.
78
Ibid.
79
Chart 4 Singapore War Crimes Trials: Court findings, appended.
80
Chart 5 Singapore War Crimes Trials: Post-trial confirmation decisions, appended.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 19

be concluded as soon as possible after the war, and British leaders constantly
checked with military personnel on these trials progress. This exact model would
not comply with todays due process standards. Such an informal and expeditious
trial approach nevertheless facilitated the wide-ranging prosecutions originally
conceived by the British.81

III. A CLOSER LOOK AT SOME SINGAPORE TRIALS: DISCUSSIONS


ON THE LIABILITY AND DEFENCE OF LOWER-LEVEL ACCUSED

This section takes a closer look at trials of Singapore atrocities, specifically trials
involving a large number of accused and crimes of a systemic or institutional
nature. Based on available trial records, 30 Singapore Trials dealt with atrocities
committed in part or wholly in Singapore.82 Many of these trials dealt with heinous
crimes such as the Sook Ching massacre and Kempeitai torture.83 Some crimes,
like the Alexander Hospital massacre, were considered for prosecution but not
pursued due to lack of evidence.84

81
The trials were later scaled down and limited to enable the conclusion of the war crimes
prosecution project, in response to Cold War dynamics and the Western Allies desire to
rehabilitate West Germany and Japan as allies. See generally, Pritchard, supra note 10.
82
Chart 3 Singapore War Crimes Trials: Crime Locations, appended. Interestingly, a
large portion of the trials dealt with crimes committed in the Andaman and Nicobar Islands
and in Burma (present-day Myanmar) and Thailand. The Andaman and Nicobar Islands
had been the Indian National Armys base during the war. The British probably believed it
was politically important to show that the Japanese had committed crimes against locals in
these islands. Many cases in Burma and Thailand were associated with the Burma-Siam
Death Railway that resulted in the death and abuse of hundreds of Allied POWs.
83
Readers interested in more detailed accounts of Second World War atrocities committed
by Japan in Singapore and the region may wish to refer generally to the following: Akashi
Yoji & Yoshimura Mako, eds, New Perspectives on the Japanese Occupation in Malaya and
Singapore, 1941-1945 (Singapore: NUS Press, 2008); Mark Felton, Japans Gestapo:
Murder, Mayhem and Torture in Wartime Asia (South Yorkshire: Pen & Sword Military,
2009); Kevin Blackburn & Karl Hack, eds, Forgotten Captives in Japanese Occupied Asia
(Abingdon: Routledge, 2008); Philip Towle et al, eds, Japanese Prisoners of War (London
and New York: Hambledon and London, 2000).
84
Jeff Partridge, Alexandra Hospital: From British Military to Civilian Institution 1938-1998
at 66-67.
20 Singapore Law Review (2016)

The Singapore Trials, especially those involving local victims, were closely
followed by the public. The media regularly reported on these war crimes trials,
and ordinary members of the public wrote to the press to debate certain trial
findings. Some argued that the sentences meted out were too lenient, while others
opined that the court had been too harsh.85 Based on media reports, only a few
trials were heavily criticised by the public. Smith attributes this to several factors.86
Most post-war community leaders in Singapore did not make the Singapore Trials
part of their political agenda as they were then occupied with opposing or
criticising the British colonial authorities proposed Malayan Union plan.87 Smith
also argues that there was not much criticism of these war crimes trials because the
trials were generally perceived by the public as fair.88
Courtrooms in Singapore were packed for trials of particularly notorious
atrocities.89 The Straits Times reported that locals had to be turned away due to
lack of space on the first day of the first Sook Ching trial.90 Several individuals who

85
For example, Tan Beng Yeow wrote to the Straits Times to complain about the Sime
Road Camp Trials sentences. He compared the imprisonment sentences to that imposed
for ordinary crimes of the day: What are present-day peacetime crimes compared to the
water-treatment, beheading of innocent civilians, rape and wholesale murder of the
Japanese Kempei-tai?. Under Tans letter to the Straits Times, the editor responded to Tan,
explaining the accused in this case were not accused of committing the crimes raised by
Tan. Sime Road and Civil Sentences, The Straits Times (1 October 1946), 6.
86
Smith, supra note 65 at 41.
87
Ibid at 53.
88
Ibid at 56.
89
Some trials had a public turnout that was lower than anticipated. It is likely that
Singapore residents were more interested in attending trials concerning crimes committed
in Singapore. For example, trial organisers had expected a high public turnout for the first
war crimes trial in Singapore, Gozawa Sadaichi and others, which saw ten accused in the
dock for ill-treating Indian POWs on Babelthuap Palau, an island of the Republic of Palau.
However, the press reported that the public gallery was not, as had been expected, filled
to capacity - see South-east Asias first war crimes trial opens No mere cover for act of
vengeance Alleged ill-treatment of Indian prisoners, The Straits Times (22 January 1946),
3.
90
Japs stories of the Chinese massacre Shinozaki a witness at opening of trial, The
Straits Times (11 March 1947), 1. The Straits Times reported that on the first day of the
trial, 10 March 1947, [h]undreds of Chinese had to be turned away from the courtroom
at the Victoria Memorial Hall because the court was crammed to capacity at 10 a.m.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 21

participated in these trials as lawyers or witnesses are well-known historical figures


today. John Eber, who acted as counsel for the prosecution in several trials, was
from a leading Singapore Eurasian family and later became an important player
in Singapores left-wing politics.91 Eber had himself been detained during the war.92
Richard Lim Chuan Ho, the only Chinese civilian on the prosecution in the
Singapore Trials, later served as Deputy Speaker in Singapores Legislative
Assembly during the countrys transition to independence and founded the
Singapore Overseas Union Bank.93
These trials also feature interesting legal discussions about the liability and
defence of lower-level accused. 94 The over 400 individuals prosecuted for war
crimes in Singapore held a variety of positions and ranks. The highest rank held by
an accused from the Japanese army was that of lieutenant general, the second
highest rank assigned by the wartime Japanese military.95 The lowest rank held by
an accused from the Japanese army was that of private and guard.96 The majority

91
Eber served as prosecutor for a number of trials in the Singapore Trials, such as the widely
reported Sime Road Trial or Susuki Sakae and others, TNA, WO 235/889. The full citation
information of this at TNA is as follows: WO 235/889 Defendant Susuki Sakae, Place
of Trial Singapore. This was unique because Eber was a civilian and not from the British
or Allied militaries like other prosecutors see Justin J Corfield, Historical Dictionary of
Singapore, new ed (Plymouth: Scarecrow Press, 2010).
92
Ibid.
93
See biodata on National Library Singapores website, online: <eresources.nlb.gov.sg/
printheritage/image.aspx?id=3f37d282-d850-4505-a0be-f9ee48bae386>.
94
When analysing these legal issues, the reader will observe that I have largely referred to
the trials DJAG review reports. This is due to the fact that, as explained earlier, most courts
did not issue comprehensive reasons for their findings or sentences in the Singapore Trials.
It is thus difficult to conclusively identify the legal grounds underlying judicial decisions.
Fortunately, the DJAG review reports set out legal discussions and observations, and some
courts did briefly indicate reasons for their findings and sentences. By examining legal
arguments raised at trial, any judicial observations made, and DJAG review reports, it is
possible to get an idea of the legal concerns influencing these trials.
95
Chart 1 Singapore War Crimes Trials: Ranks of accused (army), appended. For
information on the Japanese navy, see Chart 2 Singapore War Crimes Trials: Ranks of
accused (navy), appended.
96
Based on trial records, these guards were Korean guards. These guards were civilian
employees but they underwent military-type training and wore uniforms. Yuki Tanaka,
Hidden Horrors: Japanese War Crimes in World War II (Westview Press, 1997) at 38. These
guards were employed by the Japanese army on two year contracts. These contracts
22 Singapore Law Review (2016)

of those prosecuted in the Singapore Trials held low to mid-level positions of


responsibility. Based on their ranks, sergeants formed the largest group of accused
from the Japanese army.97 Petty officers formed the largest group of accused from
the Japanese navy.98 This means that the Singapore Trials dealt with issues
particularly relevant to lower-ranking accused. Some of these lower-ranking
accused did not directly perpetrate the crime concerned but were linked to the
crime in less direct ways.

A. POW and Detainee Camps: Dealing with Failures to Act and Indifference

When Singapore fell to Japan, the Japanese military gathered and interned more
than 100 000 Allied POWs and civilians in different camps on the island. 99 Many
of the Singapore Trials addressed ill-treatment occurring in these POW and
civilian camps. An example would be the Selarang Barracks trial, Fukuei Shimpei,
that ran for 5 days and dealt with one infamous incident of POW abuse, known as
the Selarang Barracks Incident. In the later part of 1942, the Japanese military
recaptured four British and Australian POW escapees. To prevent further POW
escapes, Fukuei Shimpei, the Japanese general commanding officer in charge of
POW camps gave the order for all POWs to undertake a pledge not to escape. The
POWs resisted, and in response, the Japanese military squeezed about 17 000
Allied POWs into Selarang Barracks, an area with the capacity to accommodate a
maximum of 900 individuals.100 The Japanese military also executed the four
recaptured POWs.101 Eventually, as the health of POWs at Selarang worsened,
British and Australian commanders ordered their men to sign the pledge.102 At the
end of his war crimes trial, Fukuei was sentenced to death by shooting.

extended repeatedly until the war ended. Brandon Palmer, Fighting for the Enemy: Koreans
in Japans War, 1937-1945 (Washington: University of Washington Press, 2013) at 166.
97
Chart 1 Singapore War Crimes Trials: Ranks of accused (army), appended.
98
Chart 2 Singapore War Crimes Trials: Ranks of accused (navy), appended.
99
Reflections & Memories of War Volume 2: Syonan Years (1942 - 1945) (Singapore:
National Archives of Singapore, 2009) at 322 [Reflections & Memories, Vol 2].
100
Ibid at 378.
101
Ibid at 382.
102
Ibid at 384.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 23

Most camp-related war crimes trials focused on the ill-treatment of POWs and
civilians during their detention, as opposed to any single incident of abuse. These
camp trials attracted much media coverage in the Straits Times. The maintenance
and running of these POW and detainee camps was made possible by numerous
personnel playing different roles. Many camp-related trials charged multiple
accused persons who had different responsibilities in these camps. Atrocities in
these camps resulted from not only positive acts of cruelty but also failures to act.
Many low to mid-ranking camp personnel exercised control over the movements
and living conditions of detainees. The criminal liability of lower-level personnel
for omissions was explored in the two Outram Park Prison war crimes trials.103
In the first Outram Park Prison trial, or Otsuka Misao and others, the 44
defendants held a variety of ranks from major-general to guard, and were in charge
of different aspects of the camp. One of these 44 accused had his charges postponed
due to illness and inability to attend trial. Five judges presided over the case,
including a lieutenant colonel from the Dutch military.104 There was one British
military prosecutor and the defence team comprised two Japanese defence counsel
and British military defence advisory officer.105 The defendants Major-General
Otsuka Misao and his predecessor Major-General Hidaka Mineo were in charge of
the jail and had inspected the jail as part of their duties. Major Kobayashi Shozo
had been the jail commandant, and Major Kamiya Haruo had been jail
commandant for two months. The majority of other accused held lower ranks and
worked as wardens, guards, and medical officers. At the end of the trial, both

103
The full citation information of these two trials at TNA are as follows: WO 235/975
Defendant Otsuka Misao, Place of Trial Singapore and WO 235/958 Defendant
Mikizawa Kushiro [Koshiro], Place of Trial Singapore. The two cases will be referred to
as Otsuka Misao and others and Mikizawa Koshiro and another.
104
The names of the judges were Lieutenant Colonel R L Le Gallais (Dept of JAG in India),
Lieutenant Colonel C Monod de Froideville (RNEIA); Major E W Hebden (RA), Captain
F T Everard (Oxf and Bucks LI), and Captain P V W Brophy (RAC). Military Court for
the Trial of War Criminals, Otsuka Misao and others, ibid, SP 776-777.
105
The prosecutor was Lieutenant Colonel C H Withers Payne. The defence counsel were
Major N S Bains (British Indian Army), Iwaguchi Morio (Judge, Osaka District Court)
and C Fujiwara. Proceedings of a Military Court, Otsuka Misao and others, supra note
103 at SP 1017.
24 Singapore Law Review (2016)

Otsuka Misao and Hidaka Mineo were sentenced to death by hanging. Five other
accused were sentenced to death by hanging; another five to life imprisonment;
four accused were acquitted; and the rest were sentenced to imprisonment from
three to 15 years.
The second Outram Park Prison trial, Mikizawa Koshiro and another, dealt with
the ill-treatment of detainees in the civilian section of Outram Park Prison. The
trial ran from 14 November 1946 for 18 days. There were three judges, one British
military prosecutor, one Japanese defence counsel who was a graduate from Tokyo
Imperial University, and a British military defence advisory officer.106 The two
accused were civilians. Mikizawa Koshiro was the governor of the prison and Noda
Takeshi was an administrative officer of the prison. Mikizawa was sentenced to life
imprisonment while Noda was sentenced to five years imprisonment.
The Outram Park Prison trial records frequently refer to the defendants failure
to act. Such omissions are particularly relevant in camp or detention cases where
victims are completely dependent on their captors for basic necessities and
protection. In Otsuka Misao and others, the 22 November 1946 DJAG review
report noted the arguments raised by accused Otsuka Misao and Hidaka Mineo,
namely, that they only had the duty of supervision. Any failure to supervise could
only be departmentally punished, and they could not be legally punished for any
failure to supervise. Rather the legal obligation of care for a prisoners welfare fell
on persons having actual custody of the prisoner.107 The DJAG report found that
based on evidence, these accused, as heads of the judiciary department, were
responsible to the commander in chief for prison conditions.108 The report stated
that both accused had visited the prison and that they had not fulfilled their duty

106
The names of the judges were Lieutenant Colonel R L Le Gallais (Dept of JAG in India),
Captain R T Wait (Intelligence Corps), and Captain A B Sheikh (Indian Signals Corps).
Military Court for the Trial of War Criminals, Mikizawa Koshiro and another, supra note
103 at SP 0003.
107
War Crimes Courts (review report, prepared by Colonel, Department of Judge
Advocate General, Allied Land Forces, South East Asia, dated 22 November 1946), Otsuka
Misao and others, supra note 103 at SP 790.
108
Ibid at SP 791.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 25

of advising the commander in chief on investigation or improvement needs.109 It


went on to observe that by virtue of their position, these two accused could have
alleviate[d] and improve[d] detention conditions if they had made the reports
they were supposed to make.110 The report scathingly stated that both accused
were well aware of prison conditions and detainee sufferings given the reports
received by the jail commandant and death certificates kept in their office.111 Yet,
the accused did not send reports to their superiors though they had a duty to do
so.112
Lieutenant Sugihara Kenji was one of the defendants in Otsuka Misao and
others. He had been a medical officer in Outram Park prison. He was sentenced
after trial by the court to life imprisonment. However, a second 21 January 1948
DJAG review report that considered Sugiharas petition recommended that his
sentence be reduced by 10 years.113 Sugiharas petition was submitted out of time
but was notably subject to assessment and the second DJAG review report. This
second report noted that Sugihara was the medical officer during a specific period,
September 1943 to June 1944, and that while the prisons medical facilities were
bad, there was little doubt that this was mainly attributable to those
responsible in the earlier stages.114 More importantly, the DJAG report
highlighted that Sugihara took some steps to improve prison conditions.115 It
drew attention to witness testimony that Sugihara had permitted detainees to
exercise and bathe in the open for one or two hours each day and to have their
blankets aired daily in the sun.116 The DJAG report stated that it was common
knowledge that detainee treatment had improved when the war turned against

109
Ibid at SP 790.
110
Ibid at SP 791.
111
Ibid at SP 792.
112
Ibid at SP 792.
113
War Crimes Trials. Petition Lt Sugihara Kenji (review report, prepared by Colonel,
Department of Judge Advocate General, Allied Land Forces, South East Asia, dated 21
January 1948), Otsuka Misao and others, supra note 103 at SP 790.
114
Ibid at SP 784.
115
Ibid at SP 784.
116
Ibid at SP 784.
26 Singapore Law Review (2016)

Japan.117 Lastly, the report explained that based on other similar cases, the original
sentence was too heavy. The report recommended sentence reduction, and
Sugihara received a remission of 10 years imprisonment.
The accused in Mikizawa Koshiro and another were charged for illtreatment
[sic] and neglect of prison detainees that led to the death of about one thousand
prisoners and the physical suffering of others.118 Apart from being involved in
actually abusing detainees, the prosecution sought to hold the two accused
responsible for prison living conditions, including insufficient food, supplies,
medicine, and overcrowding.119As the DJAG review report recognised, both
accused did not have independent decision-making power or control over many of
these prison living conditions. The first accused Mikizawa specifically argued that
he had no authority over prison or medical supplies and conditions, which fell
within the responsibility of another department. He also said he had made
representations to those in charge and had started a garden to supplement the
prisoners diet.120
Though the DJAG review report recognised that Mikizawa did not have direct
authority to change prison living conditions, it also highlighted that the medical
officer had frequently complained to Mikizawa about food problems and medical
shortages. Mikizawa did not address these complaints and had reportedly said
Prison diet did not matter.121 The report also highlighted how the first accused
was heard to say [i]f the prisoners die never mind.122 This accused was also said
to have ordered the discharge of hospital patients without checking with the
medical officer.123
The discussions in both of these Outram Park Prison trials raise an interesting
point regarding the criminal responsibility of accused who failed to act or the

117
Ibid at SP 784.
118
Charge Sheet, Mikizawa Koshiro and another, supra note 103 at SP 00016.
119
War Crimes Court (review report, prepared by Brigadier F G T Davis, Department
of Judge Advocate General, South East Asia Land Forces, dated 24 February 1947),
Mikizawa Koshiro and another, supra note 103 at SP 00004-00005.
120
Ibid at SP 00006.
121
Ibid at SP 00005.
122
Ibid at SP 00005.
123
Ibid at SP 00005.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 27

criminal implications of omission. Some defendants were accused of not taking


steps to improve detention conditions. Interestingly, some defendants argued that
the supply of necessities or allocation of prison space did not fall within their
control, and that other departments and individuals were in charge of these
matters. Nevertheless, trial actors pointed to steps these defendants could have
taken. In Otsuka Misao and others, the DJAG review report observed that by virtue
of their position, Otsuka Misao and Hidaka Mineo could have alleviate[d] and
improve[d] detention conditions if they had made the reports they were
supposed to make.124 On the other hand, the DJAG report for Sugimoto
recommended a sentence reduction as he had made small improvements to
detention conditions.
These DJAG review reports do not clearly explain how the defendants conduct
or mental state relate to each other or the relevant war crime. These cases appear
to have treated omissions as capable of attracting individual criminal responsibility.
Other post-Second World War courts, as well as the more recently established ad
hoc international criminal tribunals, have also recognised that core international
crimes can be committed through omission.125 However, there is no consistent
national approach to this question, and it remains controversial whether there is
sufficient evidence for general criminal liability on the basis of omissions in
customary international law or as a general principle of law.126 Ambos argues that
[a]t best the evidence only supports finding a general principle of law that
individuals may be held criminally liable for omissions when two minimum
requirements exist, namely, when the said individual is under a legal duty to act

124
War Crimes Courts (review report, prepared by Colonel, Department of Judge
Advocate General, Allied Land Forces, South East Asia, dated 22 November 1946), Otsuka
Misao and others, supra note 103 at SP 791.
125
Michael Duttwiler, Liability for Omissions in International Criminal Law (2006) 6:1
International Criminal Law Review 1 at 1725 & 4553. For a summary of recent case
law of the ad hoc international criminal tribunals, see Kai Ambos, Treatise on International
Criminal Law, Volume 1: Foundations and General Part (Oxford: Oxford University Press,
2013) at 191-193.
126
Gerhard Werle & Florian Jessberger, Principles of International Criminal Law, 3rd ed
(Oxford: Oxford University Press, 2014) at 268.
28 Singapore Law Review (2016)

and has the material ability to act.127 The content of these requirements for
omission liability still need much elaboration.128

B. Kempeitai Units: The Relevance of Organisational Membership

A substantial number of Singapore Trials dealt with crimes committed by the


Kempeitai, the much-feared Japanese military police in charge of gathering
intelligence and identifying anti-Japanese individuals.129 The Kempeitai conducted
their detentions and interrogations at several locations in Singapore, such as the
YMCA building on Stamford Road, at Oxley Road, the Central Police Station on
South Bridge Road, and in a building on South Bridge Road.130After the war, the
British military rounded up Kempeitai members for war crimes investigations and
trials. In some instances, the prosecution did not have clear evidence linking lower-
level Kempeitai personnel to Kempeitai crimes; these personnel appear to have
been charged based on their Kempeitai membership.
Organisational membership may be treated as an independent offence or as
evidence of a separate offence. Article 9 of the Nuremberg Tribunals Charter
recognised that the Tribunal could declare (in connection with any act of which
the individual may be convicted) that the group or organization of which the
individual was a member was a criminal organization.131 Article 10 went on to
recognise that any signatory could then prosecute individuals before national,
military, or occupation courts for their membership of these criminal

127
In contrast, scholars like Duttwiler and Ambos do not believe that such a customary
international law rule exists. Duttwiler, supra note 125. Ambos, supra note 125 at 197.
128
Ambos, ibid at 197.
129
Lee Geok Boi, The Syonan Years: Reflections & Memories of War (Singapore: National
Archives of Singapore, 2005) at 224. For more details on the Kempeitai, see Richard
Deacon, Kempeitai: A History of the Japanese Secret Service (Beaufort Books, 1983).
130
Ibid at 227.
131
Charter of the International Military Tribunal for the Trial of the Major War Criminals,
Appended to the Agreement for the Prosecution and Punishment of Major War Criminals
of the European Axis, 8 August 1945, London, as amended, Protocol to Agreement and
Charter, 6 October 1945, 82 UNTS 249 at Art 9 [Nuremberg Charter].
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 29

organisations.132 This authorised the holding of subsequent national trials to


punish lower-level Nazi members for their connection to groups declared to be
criminal.133 There were no equivalent provisions in the Tokyo Tribunals Charter.
The 1945 Royal Warrant also did not authorise criminalisation of Japanese military
organisations or foresee convictions for organisational membership.
Though the 1945 Royal Warrant governing the Singapore Trials did not
provide for the criminalisation on the basis of organisational membership, it
employed the concept of group membership in an evidential manner. Regulation
8(ii) of the 1945 Royal Warrant stated that [w]here there is evidence that a war
crime has been the result of concerted action upon the part of a unit or group of
men, then evidence given upon any charge relating to that crime against any
member of such unit or group may be received as prima facie evidence of the
responsibility of each member of that unit or group for that crime. The
interpretation of this regulation was discussed in two Kempeitai trials linked to the
notorious Double Tenth Incident.
The Double Tenth Incident refers to events associated with the Allied sabotage
of Japanese ships in the Singapore harbour on 10 October 1943. This sabotage was
orchestrated by a team of British and Australian military personnel who sailed on
a Japanese fishing boat from Australia.134 The Japanese military was convinced that
these saboteurs had been assisted by POWs and civilians in Singapore.135 As a
result, the Kempeitai undertook large-scale arrests and interrogations of POWs and
civilians, torturing and killing many. Two trials linked to the Double Tenth
incident will be studied here: one trial focusing on Kempeitai abuse at the YMCA
Building on Singapores Stamford Road, and another trial focusing on Kempeitai
abuse at Oxley Rise Police Station.136

132
Nuremberg Charter, ibid, Art 10.
133
Henri Donnedieu de Vabres, The Nuremberg Trial and the Modern Principles of
International Criminal Law in Gunal Mettraux, ed, Perspectives on the Nuremberg Trial
(New York: Oxford University Press, 2008) 227 at 252-261.
134
Ibid at 229.
135
Ibid at 229.
136
The full citation information of these two trials at TNA are as follows: WO 235/843
Defendant Yamaguchi Akuni, Place of Trial Singapore and WO 235/891 Defendant
30 Singapore Law Review (2016)

The trial of Yamaguchi Akuni and others dealt with Kempeitai abuse at Oxley
Rise and began on 21 February 1946. It lasted for five days and dealt with five
accused. There were three judges and one prosecutor.137 The accused were
represented by two Japanese defence counsel, who were judges of the High Court
of Japan.138 Among prosecution witnesses were local victims and locals who had
worked as interpreters for the Kempeitai at Oxley Rise Police Station. Interestingly,
archival records show that certain British military personnel had resisted the arrest
of two accused, namely, Second Lieutenant Yamaguchi Akuni and Sergeant
Shimomura Tomohei. These two accused had assisted British military personnel
in investigating Kempeitai activities.139 Yamaguchi was the overall in charge of
Oxley Rise Kempeitai. Three other accused Sergeant Matsumoto Mitsugi,
Sergeant Uekihara Susumu, and Shimomura were alleged to have been involved
in ill-treatment and abuse. One accused, Sergeant-Major Ikeda Saiichi, was
eventually acquitted by the court. The rest were sentenced to death by hanging.
Their sentences were confirmed.
The trial with respect to Kempeitai abuse at the YMCA Building, Sumida
Haruzo and others, started a few weeks later on 18 March 1946 but lasted much
longer, for altogether 21 days. Three judges presided, one of whom was from the
Australian military.140 There were two prosecutors and two defence counsel who
were assisted by a British military defence advisory officer.141 This trial featured

Sumida Haruzo, Place of Trial Singapore. The two cases will be referred to as Yamaguchi
Akuni and others and Sumida Haruzo and others.
137
The judges in this case were Lt Col L G Coleman (Solicitor, Dept of JAG in India);
Major W M Gray (1st Bn Cameroonians); Capt R D Kohli (2 Punjabs) see Military
Court for the Trial of War Criminals, Yamaguchi Akuni and others, SP 00003. The
prosecutor was Capt A A Hibbert see War Crimes Court No. 1. Ibid at SP 00042.
138
The two Japanese defence counsel had their names recorded as Nakazono and Toda.
Their positions were indicated as Judges of the Japanese Criminal (High) Court. Ibid.
139
Ibid at SP 00015.
140
The names of the judges were Lieutenant Colonel S C Silken (RA Barrister-at-Law);
Major S F Hodgens (No. 1 Australian War Crimes Section SEAC); Captain R J Topping
(6-8 Punjabs) - see Military Court for the Trial of War Criminals, Sumida Haruzo and
others, supra note 136 at SP 00003.
141
The names of the prosecutors were Lieutenant Colonel S C Sleeman and Captain A A
Hibbert. The names of defence counsel were Nori Masakazo and Suzuki Hisakazu. The
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 31

many prosecution trial witnesses with Chinese names, one of whom was Choy
Koon Heng. Choy was the husband of war heroine Elizabeth Choy. During the
Japanese occupation of Singapore, the Choys ran a canteen at Miyako Hospital,
the former Woodbridge Hospital, where they facilitated the passing of messages
and supplies to detainees.142 Both husband and wife were detained and severely
abused by the Kempeitai. Choy was sentenced by the Japanese to 12 years while
Elizabeth Choy was released after 193 days of detention and torture.143 21 accused
were tried in this trial. The highest-ranking officer was Lieutenant Colonel Sumida
Haruzo. The other accused held low to mid-level ranks, while four accused were
civilian interpreters. Eight accused were sentenced to death, three to life
imprisonment, two to eight years, another to 15 years, and seven were acquitted.
These two trials employed the above-mentioned Regulation 8 and the accused
persons Kempeitai membership to overcome evidential problems rather than affix
guilt. In the case of Yamaguchi Akuni and others, the DJAG review report contained
an assessment of the evidence presented at trial, focusing on the testimony given
by one of the victims, Lee Keok Leong, and an interpreter employed by the
Kempeitai, M.M. Dal. The report noted that Lees evidence which implicated three
of the accused was not very satisfactory.144 However, the report also noted that
the DJAG had been told Lee appeared to be a very truthful witness.145 The
report then assessed the evidence of Dal against another accused, observing that
Dal was a collaborator who was alleged to have also tortured one of the victims
and therefore his testimony should be regarded with suspicion.146 The DJAG
review report then went on to note that the interrogation and abuse was the result
of concerted action by the Oxley Rise investigation section of which the four

British defence advisory officer was Lieutenant Wilkinson - see Proceedings of a Military
Court, Sumida Haruzo and others, supra note 136 at SP 00043.
142
Lee, supra note 129 at 229-230.
143
Ibid at 230.
144
War Crimes Trial (review report, prepared by Brigadier F G T Davis, Department of
Judge Advocate General, South East Asia Land Forces, dated 1 April 1946), Yamaguchi
Akuni and others, supra note 136 at SP 00025.
145
Ibid.
146
Ibid.
32 Singapore Law Review (2016)

accused were members.147 Therefore, based on Regulation 8, evidence against one


could be prima facie evidence against others. In this way, the report appeared to
be using the evidence provided by Lee with respect to Yamaguchi, Matsumoto, and
Shimomura against Uekihara, in light of the potentially suspect evidence of Dal.
The report also noted that the court had the advantage of hearing the witnesses
and assessing their testimonies.148 Confirmation of sentences was recommended
and the sentences were found to be legal.149 Interestingly, the DJAG report went
on to note that the confirming authority had the power to commute any of the
sentences if considered just.150
In the second case of Sumida Haruzo and others, one of the arguments raised by
the defence in this case was that some or all of the accused had been wrongly
identified. Two of the accused were acquitted in this case for reasons related to
mistaken identity. The DJAG review report noted that the defence had also argued
that Regulation 8 could not apply as it had not been proven that the acts of abuse
and ill-treatment were concerted action on the part of the unit.151 Therefore, it
must be proven that the accused had himself committed some atrocity.152
Regulation 8s application had been raised by the prosecution at the end of its case
when the court highlighted that evidence presented against Sergeant Yamauchi
Satori merely went to proving that he was a member of the Kempeitai.153 The
prosecutor admitted that it was using Regulation 8 to prove a prima facie case
against Yamauchi and argued that the court was obliged to call on the accused to
make a defence.154 The prosecution underscored that the charge concerned one
continuing transaction on the part of a group to which Yamauchi belonged and

147
Ibid.
148
Ibid.
149
Ibid.
150
Ibid.
151
War Crimes Court (review report, prepared by Brigadier F G T Davis, Department
of Judge Advocate General, South East Asia Land Forces, dated 1 July 1946), Sumida
Haruzo and others, supra note 136 at SP 00016.
152
Ibid.
153
Ibid at SP 00248.
154
Ibid.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 33

that privity was so close among members of the group.155 When the court asked
the defence to respond to the prosecutions position, the defence argued that the
prosecutions argument did not apply as the Kempeitai did not have unlawful
acts as its objective. Also, the term concerted required a common will of
purpose among the groups members and there was no evidence showing that
Yamauchi had such common will.156 The court decided to call Yamauchi to make
his defence, presumably agreeing with the prosecutions interpretation of
Regulation 8.157
The DJAG review report of this case unfortunately did not discuss the
Regulation 8 argument made at trial. This omission may be due to the fact that,
though not expressly stated, the court appears to have taken an individualised
approach when determining guilt and sentences. Unlike the majority of trials
where the court concerned issued findings and sentences without any reasons, the
court in this trial made brief explanations when handing down its sentences. It
referred to factors such as a defendants attitude, age, actual involvement, and the
relative seriousness of their roles. The court sentenced Sumida to death as he was
the cunning brain who had directed the other accused as instruments of
torture.158 When sentencing Monai, Makizono, Terada, Nozawa, Tsugio, Morita,
and Toh, the court observed that these accused were willing tools of inhuman, of
murderous purpose.159 The court acquitted Tanaka at the end of the prosecutions
case as it found no evidence against him.160 At the end of the trial, the court also
acquitted Warrant Officer Umeda Hisao and Sergeant Takeuchi Noboru as it was
satisfied that these were cases of mistaken identity.161 For Staff Sergeant Kataoka
Masaki, the court observed that he had been lying from the beginning to the end
but lies do not make a man guilty of a war crime. The court went on to explain
that as there was no evidence of Kataoka ill-treating any individual, the court would

155
Ibid at SP 00249.
156
Ibid.
157
Ibid at SP 00250.
158
Ibid at SP 00489.
159
Ibid.
160
Ibid at SP 00250.
161
Ibid at SP 00486.
34 Singapore Law Review (2016)

give him the benefit of the doubt and acquit him.162 The court also acquitted
Staff Sergeant Sugimoto Heikichi, Private Murata Yoshitaro, and Yamauchi due to
insufficient evidence.
The accused in these two Double Tenth Trials had probably been marked as
suspects by British war crimes investigators due to their Kempeitai membership.
However, as these trials demonstrate, it was difficult to verify whether the accused
had played a role in the crimes concerned due to fading witness memory and
witness errors. Indeed, the court in Sumida Haruzo and others expressly acquitted
two accused on the basis of mistaken identity. Regulation 8 of the 1945 Royal
Warrant Regulations was used in these trials to overcome evidentiary problems in
two ways. In Yamaguchi Akuni and others the DJAG review report noted that the
evidence provided by witness Lee against Yamaguchi, Matsumoto, and Shimomura
could be used against Uekihara. This overcame the concern that evidence given by
witness Dal against Uekihara Susumu was less reliable due to witness Dals
collaboration with the Japanese. In Sumida Haruzo and others, the prosecution
argued that based on Regulation 8 it only needed to provide evidence that the
accused was a member of the Kempeitai when presenting the prosecutions case,
and the court would then be required to call the accused to present his defence.
The court did so.
Similar issues that relate to an accused persons organisational status are
encountered in todays international criminal trials. Combs highlights this in her
empirical study on fact-finding challenges experienced by present-day
internationalised criminal courts.163 She argues that the trial chambers of
internationalised criminal courts, when encountering fact-finding challenges in
war crimes trials, supplement the very muddy evidential picture that is presented
to them at trial with common sense inferences that they draw from the defendants
official position.164 It is noteworthy that in the case of Sumida Haruzo and others,
the court only used Regulation 8 to overcome evidential deficiencies in the
prosecutions presentation of its case. The Sumida Haruzo and others court appears

162
Ibid.
163
Nancy A Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of
International Criminal Convictions (Cambridge: Cambridge University Press, 2010) at 269.
164
Ibid at 269.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 35

to have taken an individualised approach when deciding on guilt and sentences at


the end of the trial, acquitting some accused persons due to insufficient evidence.

C. Sook Ching and Seletar Beheadings: The Superior Orders Defence


and Its Complications

The Singapore Trials mainly dealt with crimes committed by defendants within a
military hierarchy. The most common defence put forward in the Singapore Trials
was the defence of superior orders. Specifically, defendants argued that they had
acted pursuant to superior orders and should not be held liable or punished for the
crimes concerned. When examining the arguments made in the Singapore Trials,
one needs to remember that these trials took place at a time when the scope and
applicability of the superior order defence remained very fluid.
The charters of the Nuremberg and Tokyo Tribunals prohibited superior
orders from automatically exculpating an accused though these may be considered
in mitigation of punishment if the Tribunal determines that justice so requires.165
However, the 1945 Royal Warrant and its regulations did not expressly address the
applicability of this defence. The British military had in fact amended its position
on the defence of superior orders during the war, which raises retrospectivity and
fairness concerns. Though not formally a source of law, the British Manual of
Military Law (MML) originally recognised that superior orders could exonerate an
individual.166 However, in 1944, a change was introduced into the British MML

165
Nuremberg Charter, supra note 131, Article 8. Charter of the International Military
Tribunal for the Far East, Tokyo, 19 Jan 1946, as amended, 26 April 1946 TIAS 1589,
Article 6.
166
The pre-1944 paragraph on superior orders read: members of the armed forces who
commit such violations of the recognized rules of warfare as are ordered by their
Government, or by their commander, are not war criminals and cannot therefore be
punished by the enemy. He may punish the officials or commanders responsible for such
orders if they fall into his hands, but otherwise he may only resort to other means of
obtaining redress see British Manual on Military Law 1929 (London: His Majestys
Stationery Office, 1929) at Chapter XIV, para 443.
36 Singapore Law Review (2016)

by Amendment No 34 of 1944.167 The amended paragraph stated that just because


a rule of warfare was violated in pursuance of an order, this did not deprive
the act in question of its character as a war crime or in principle, confer upon the
perpetrator immunity from punishment by the injured belligerent.168 At the
minimum, judges seeking to comply with Paragraph 443 could not exculpate an
accused on the sole basis that the war crime was committed in pursuance of an
order. Nevertheless, as explained earlier, judges did not stop defendants from
raising superior order claims in the Singapore Trials. These claims received much
attention in trials dealing with the Japanese militarys massacre of Chinese during
the war, also known as the Sook Ching, and the Japanese militarys beheadings of
POWs at Seletar, Singapore.
After Singapore fell to the Japanese military on 15 February 1942, General
Yamashita Tomoyuki ordered the screening of Chinese residents to identify and
eliminate anti-Japanese individuals. Japan had been at war with China since 1937
and many Chinese in Singapore had provided various forms of support to China.169
Chinese residents were instructed to gather at certain locations to undergo a
screening process. Due to the large number of Chinese to be screened and the lack
of clear screening guidelines, lower-ranking Japanese personnel who were in charge
of the screening process adopted conflicting and often careless screening
methods.170 Many used irrelevant factors to identify anti-Japanese elements among
the Chinese population. For example, at Singapores Jalan Besar, the Japanese
military targeted individuals wearing spectacles as they were presumably educated
and therefore anti-Japanese. At Telok Kurau English School, Japanese personnel

167
For a detailed discussion of these amendments as well as reproduction of the texts, see
Jia Bing Bing, The Plea of Superior Orders in the Hong Kong Trials, in Suzannah
Linton, ed, Hong Kongs War Crimes Trials (Oxford: Oxford University Press, 2013) at
174-175
168
Ibid at 174.
169
Reflections & Memories, Vol 2, supra note 99 at 14. For more details on the Chinese
massacre in Singapore or Sook Ching and its impact on Chinese victimhood, the reader may
wish to consult: Kevin Blackburn & Karl Hack, War Memory and the Making of Modern
Malaysia and Singapore (Singapore: NUS Press, 2012) at 136-173.
170
Reflections & Memories, Vol 2, ibid at 20.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 37

called for the Chinese-educated to put up their hands.171 Those who did were taken
away and killed. The precise number of those killed remains unknown. The
Japanese admit to killing 6000 Chinese while the Chinese Chamber of Commerce
puts the number of those killed between 50 000 to 100 000.172
The British organised two Sook Ching trials in Singapore.173 The first trial of
Nishimura Takuma and others involved seven defendants and lasted for fifteen days
from 10 March 1947 to 2 April 1947. The second trial, Mizuno Keiji, was held
about a year later and was more low-key. Reflecting the complexity of the crime
and the public importance of this case, Nishimura Takuma and others was presided
over by five judges with decision-making power over the case.174 Making up the
prosecution team was Major F. W. Ward and above-mentioned Chinese lawyer
Richard Lim Chuan Ho.175 The latters involvement shows the importance of this
case to the Singapore Chinese community. The defence was conducted by three
Japanese defence counsel who were barristers of the Tokyo Supreme Court. Each
represented two or three accused. These defence counsel were assisted by one
British defence advisory officer. Both trials featured a large number of witnesses
with local names. Witnesses included those who had assisted the Japanese military
in the screening process and those who were members of the anti-Japanese Straits
Settlement Volunteer Force. Among prosecution witnesses was Shinozaki

171
Ibid at 21.
172
Ibid at 28.
173
The full citation information of these two trials at TNA are as follows: WO 235/1004
Defendant Nishumura Takoma [Takuma], Place of Trial Singapore and WO
235/1110 Defendant Mizuno Keiji, Place of Trial Singapore. The two cases will be
referred to as Nishimura Takuma and others and Mizuno Keiji.
174
The names of judges were as follows: Lieutenant Colonel P A Forsythe (Kings Royal
Rifle Corps); Major F Clague (Royal Artillery); Major A A Futcher (Royal Artillery); Major
A E Dennis (Royal Engineers); Captain R H Tyson (Intelligence Corps) - see Military
Court for the Trial of War Criminals, Nishimura Takuma and others, supra note 173 at
SP 12.
175
For a photo of Ward and Lim: www.nas.gov.sg/archivesonline/photographs/record-
details/9f0f8614-1162-11e3-83d5-0050568939ad. Defence counsels names were K
Kakuda Barrister, Supreme Court Tokyo), S Kurose Barrister, Supreme Court Tokyo) and
M Fujiwa (Barrister, Supreme Court Tokyo). They were assisted by defence advisory officer
Captain R T Wait see Proceedings of a Military Court, Nishimura Takuma and others,
supra note 173 at SP 40.
38 Singapore Law Review (2016)

Mamoru, a Japanese official who is also known as the Japanese Schindler for his
issuing of good citizen passes that saved many lives during the Japanese wartime
occupation of Singapore.176
The trial involved two lieutenant generals, two lieutenant colonels, two majors,
and one captain. Lieutenant General Nishimura Takuma and Lieutenant General
Kawamura Saburo were in charge of the Imperial Guards Division and put in
charge of two different parts of the island. Kawamura sub-divided his part and
placed one part under Lieutenant Colonel Oishi Masayuki who commanded the
Kempeitai. Oishi proceeded to split up the areas under his command into sectors,
three of which came under Lieutenant Colonel Yokota Yoshitaka and Major Jyo
Tomotatsu. Major Onishi Satorou was in charge of a sector under Yokoto and
Captain Hisamatsu Haruji in charge of a sector under Jyo. Two accused were
sentenced to death by hanging. The rest were sentenced to life imprisonment. All
of these sentences were eventually confirmed, in line with the recommendations of
the DJAG review report.
The accused in Nishimura Takuma and others claimed to be following General
Yamashitas order to identify and eliminate anti-Japanese elements. However, the
DJAG review report found that the actual execution of Yamashitas order, in
terms of selecting the time, place and method of killing, was the responsibility of
sector commanders.177 The report focused on the superior order arguments raised
by the defence.178 The defence argued that action against members of the Singapore
Overseas Chinese Anti-Chinese Japanese Volunteer Army or Dalforce was justified
as the latter had discarded their uniforms and were organising underground
activities. Addressing this argument, the DJAG review report noted that while
operational action against this category of persons was justified, there was ample
evidence that first, there were other elements included in Yamashitas plan
and, second, the implementation of screening was so casual as to result in the

176
Mamoru Shonozaki, Syonan: My Story The Japanese Occupation of Singapore
(Singapore: Times Books International, 1992).
177
War Crimes Trial (review report, prepared by Brigadier F G T Davis, Department of
Judge Advocate General, South East Asia Land Forces, dated 5 May 1947), Nishimura
Takuma and others, supra note 173 at SP 22.
178
Ibid, SP 23.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 39

killing of innocent persons.179 In other words, even when an order was given, the
order may have given subordinates a measure of discretion or control over the
orders implementation. The DJAG review report in Nishimura Takuma and others
highlighted how the accused persons implementation of orders was so casual
that it resulted in the indiscriminate killing of innocent persons.180 Such careless or
extravagant implementation may show that the crime should be attributed to the
defendants own initiative. When assessing the defendants superior order claims,
the DJAG review report also noted that it must have been obvious to all
concerned that this order was not a lawful command.181 This foreshadowed the
scope of the superior orders defence as recognised today in the Statute of the
International Criminal Court (ICC Statute). Article 33 of the ICC Statute states
that for superior orders to count as a defence, one of the conditions to be fulfilled
is that the order should not be manifestly unlawful. 182
Another interesting set of trials that illustrate difficulties associated with
superior orders dealt with the Seletar beheadings of POWs.183 The accused in the
first, second and fourth trials dealing with the Seletar beheadings played different
roles in the planning, implementation and cover up of the beheadings. In the third
trial, the prosecutions case focused on how the accused had been involved in trying
to destroy evidence of these beheadings at the end of the war. The first trial, Hikiji
Susumu, was held on 10 November 1947 and ran for two days. Hikiji received a
death sentence that was confirmed on 19 December 1947. This accused testified
in three subsequent war crimes trials against others involved in the beheadings. The
second trial, Okamoto Toshio and others, started on 13 December 1947 and

179
Ibid.
180
War Crimes Trial (review report, prepared by Brigadier F G T Davis, Department of
Judge Advocate General, South East Asia Land Forces, dated 5 May 1947), Nishimura
Takuma and others, supra note 173, SP 23.
181
Ibid.
182
ICC Statute, 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), Article
33.2.
183
The full citation information of these four trials at TNA are as follows: WO 235/1108
Defendant Hikiji Susumu, Place of Trial Singapore; WO 235/1103 Defendant
Okamoto Toshio, Place of Trial Singapore; WO 235/1102 Defendant Fukudome
Shigeru, Place of Trial Singapore; WO 235/1100 Defendant Miyawaki Fumio, Place
of Trial Singapore. These four cases will hereinafter be referred to as Hijiki Susumu;
Okamoto Toshio and others; Fukudome Shigeru and others; and Miyawaki Fumio.
40 Singapore Law Review (2016)

continued for four days. Lieutenant Commander Okamoto Toshio was sentenced
to death while Sub-Lieutenant Kobayashi Kenichiro and Petty Officer Too (alias
Noboruo) Shizuo who had organised and participated in the beheadings were each
sentenced to 20 years imprisonment. Okamotos death sentence was later reduced
to 20 years imprisonment on 21 January 1948. The third trial, Fukudome Shigeru
and others, began on 9 February 1948 and went on for 8 days. The six accused
Vice Admiral Fukudome Shigeru, Rear Admiral Asakura Bunji, and Commander
Ino Eiichi, Vice Admiral Imamura Osamu, Captain Matsuda Gengo, and Captain
Saito Yakichi received comparatively lenient sentences of two to eight years
imprisonment for reasons explained below. The fourth trial, Miyawaki Fumio, was
held on 1 March 1948 for two days. Lieutenant Miyawakis death sentence was
reduced to 20 years imprisonment when confirmed on 30 March 1948.
The DJAG review reports of these trials show that the British authorities had
problems identifying the origin of the beheading order. In the third trial of
Fukudome Shigeru and others, the DJAG review report observed that much of the
evidence presented by witnesses who had been subordinates of the accused was
not very satisfactory as they were naturally trying to shield their superior
officers.184 Indeed, one of the higher-ranking accused in Okamoto Toshio and
others who had given the beheading order, Okamato, had argued that he had in
turn received orders from his superiors that the POWs should be beheaded. The
DJAG review report of this case had advised commutation of Okamotos death
sentence to 20 years as Okamoto was not any more blameworthy than the two
other accused.185 The report observed that based on the courts questioning of
Okamoto at trial, the court had suspected Okamoto of ordering the beheadings

184
Reference the trial of (1) Vice Admiral FUKUDOME Shigeru (2) Rear Admiral
ASAKURA Bunji (3) Comdr INO Eiichi (4) Vice Admiral IMAMURA Osamu (5) Capt
MATSUDA Gengo (d) Capt. SAITO Yakichi (review report, prepared by Colonel,
DJAG, Far East Land Forces, dated 15 March 1948), Fukudome and others, supra note 183
at SP 4.
185
War Crimes Trials (review report, prepared by Colonel, DJAG, Far East Land Forces,
dated 12 January 1948), Okamoto Toshio and others, supra note 183 at SP 00014.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 41

on his own initiative, but there was no evidence to support this suspicion of the
court.186
However, by the fourth trial of Miyawaki Fumio, the DJAG review report
concluded that the evidence presented at these beheading trials had been very
contradictory when it came to who gave the beheading order. Indeed, the report
went on to note that [v]iewing the evidence as a whole it was very unlikely that
the beheadings had been ordered by the Admiral as alleged by Okamoto and that
there was a suspicion that Okamoto had given the orders himself on his own
initiative.187 As Okamoto was the superior of Miyawaki who was the accused in
this fourth trial, the DJAG review report recommended that Miyawakis sentence
of death by hanging, as handed down by the court, be commuted to take into
account Okamotos sentence commutation to 20 years.188 This reflects a concern
that the accused persons be treated consistently. Interestingly, whether due to
oversight or other factors, it is worth recalling that the death sentence handed down
in the first trial to Hikiji, who served as witness in the later beheading trials, was
not reduced at confirmation.
Identifying the circumstances surrounding such orders was particularly difficult
in these cases as the Japanese military had been instructed to comprehensively
destroy all records and evidence of potential war crimes upon Japans wartime
surrender. Such attempts to cover up war crimes formed the basis of charges in the
third trial concerning Seletar beheadings, Fukudome Shigeru and others. The
prosecutions case against the majority of accused of Fukudome Shigeru and others
focused on their role as accessories after the fact when they sought to cover up
evidence of these beheadings by arranging for the exhumation and burning of
POW bodies.189 The exhumation and burning decision was made at a post-war

186
Ibid.
187
Reference the proceedings of the trial of Lt. Miyawaki Fumio of the Imperial Japanese
Army and his petition attached thereto (review report, prepared by Colonel, DJAG, Far
East Land Forces, dated 17 March 1948), Miyawaki Fumio, supra note 183 at SP 00006.
188
Ibid.
189
Reference the trial of (1) Vice Admiral FUKUDOME Shigeru (2) Rear Admiral
ASAKURA Bunji (3) Comdr INO Eiichi (4) Vice Admiral IMAMURA Osamu (5) Capt.
MATSUDA Gengo (d) Capt. SAITO Yakichi (review report, prepared by Colonel, DJAG,
42 Singapore Law Review (2016)

conference chaired by the first accused. Except for Imamura Osamu, all accused
attended the conference. The prosecution based its case against the higher ranking
Imamura on his responsibility for these POWs. Imamura was sentenced to eight
years imprisonment, while the other accused were given comparatively light
sentences of two to three years imprisonment for their role in covering up these
beheadings.
Defences remain a relatively new area in international criminal law, having only
been recently comprehensively codified by the ICC Statute.190 Debates about the
superior order defence have generally focused on its rationale and definition, rather
than its practical implementation.191 The superior order claims made by defendants
in these Singapore Trials are of interest as they draw attention to some
implementation issues associated with the defence of superior orders.

IV. REFLECTIONS ON LOWER-LEVEL WAR CRIMES


PROSECUTIONS

The atrocities committed by Japanese personnel during the Second World War
continue to shock us even today. Trial records shed light on the scale of these
atrocities as well as the suffering of detainees and civilians. Each year, on the
anniversary of the end of the Second World War, groups organise ceremonies in
Singapore to commemorate the wars conclusion and its numerous victims. During
the 2015 remembrance ceremony held at Kranji War Memorial, Singapores
former Attorney-General Professor Walter Woon spoke about the need to
remember the past regardless of how difficult this may be. He however cautioned
against using the past to keep scratching at the scabs of unhealed wounds and

Far East Land Forces, dated 15 March 1948), Fukudome and others, supra note 183 at SP
5.
190
These defences are found in Part III of the ICC Statute, supra note 167.
191
See for example, Yoram Dinstein, The Defence of Obedience to Superior Orders in
International Law, Reprint Edition (Oxford: Oxford University Press, 2012); Paolo Gaeta,
"The Defence of Superior Orders: The Statute of the International Criminal Court versus
Customary International Law" (1999) 10 EJIL 172.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 43

argued for a more positive way of remembering history.192 As Woon suggested,


these crimes remind us of what the folly of militarists does to ordinary people.193
The vast numbers of lower-level accused prosecuted in Allied national trials like
the Singapore Trials is a sobering reminder of the many ordinary people involved
in these mass atrocities.
In terms of legal lessons, the Singapore Trials do not look like todays war
crimes trials. Its laws and processes are markedly different and would contravene
many of todays human rights standards. This is to be expected given international
criminal law and human rights laws rapid and expansive development since the
Second World War. The Singapore Trials legal framework and trial process should
not be replicated in their exact form today. However, the trials general approach
is of interest. As mentioned above, internationalised criminal courts are taking steps
to address concerns over costly and protracted trials. Domestic and international
criminal justice actors are working on developing more efficient practices and
procedures that also comply with fundamental human rights standards.194 The
Singapore Trials point us in the direction of considering a less legalistic and
expeditious approach to war crimes trials.
The Singapore Trials are also legally interesting due to the majority of lower-
level accused prosecuted in these trials. These trials focus on lower-level personnel
distinguish them from the Nuremberg and Tokyo Trials as well as many
contemporary war crimes trials. Mass crimes are facilitated by a large number of
persons and very often take place within a group or institutional context. While it
is important to target the masterminds and leaders of these crimes, justice processes
should also deal with the responsibility of lower-level accused. Trial discussions
about criminalisation of omission, the relevance of organisational membership, and
the defence of superior orders highlight challenges that may be encountered when
using the law to address lower-level responsibility.

192
Woon, supra note 8.
193
Ibid.
194
See for example, the lessons identified on Bosnia and Herzegovinas addressing of its
backlog of cases. Morten Bergsmo et al, eds, The Backlog of Core International Crimes Case
Files in Bosnia and Herzegovina (Oslo: Torkel Opsahl Academic EPublisher, 2010).
44 Singapore Law Review (2016)

The lower-level liability and defence issues discussed in the Singapore Trials
will become increasingly relevant with the spread and consolidation of
international criminal law. Presently, internationalised criminal courts usually
focus on high-ranking leaders or direct perpetrators. This is reasonable as these
courts have limited capacity and budgets. As accountability for core international
crimes becomes increasingly accepted by States, the bulk of war crimes will in the
future be addressed by national courts or other national processes.195 The
normalisation of accountability for atrocity at the domestic and international level
may lead to prosecutions or proceedings that go beyond leaders or direct
perpetrators. With this in mind, the Singapore Trials lessons are not only
historically interesting but also highly germane to our times.

ANNEX

Chart 1 Singapore War Crimes Trials: Ranks of Accused (Army)

70

60

50

40

30

20

10

195
Bergsmo, Complementarity, supra note 12.
34 Sing L Rev AN OVERVIEW OF THE SINGAPORE WAR CRIMES TRIALS 45

Chart 2 Singapore War Crimes Trials: Ranks of Accused (Navy)

30

25

20

15

10

0
Vice Rear Commander Lieutenant Petty Leading
Admiral Admiral Commander Officer Seaman

Chart 3 Singapore War Crimes Trials: Crime Locations

Andaman and
Singapore Nicobar Islands,
(22%) India
27%

Papua New
Guinea
(4%)
Palau (2%)

Indonesia (7%)
Vietnam (2%)
Cambodia (1%) Thailand and
Myanmar
Malaysia (7%) (27%)
Brunei
(1%)
46 Singapore Law Review (2016)

Chart 4 Singapore War Crimes Trials: Court Findings

Guilty (89%) Not guilty (11%)

Chart 5 Singapore War Crimes Trials: Post-trial Confirmation Decisions

Confirmed with reductions


(13%)
Confirmed
Not confirmed
(84%)
(3%)