Historical War Crimes Trials in Asia LIU Daqun and ZHANG Binxin (editors) Historical War Crimes Trials in Asia LIU Daqun and ZHANG Binxin (editors) 2016 Torkel Opsahl Academic EPublisher Brussels This and other books in our FICHL Publication Series may be openly accessed and downloaded through the web site http://www.fichl.org/ which uses Persistent URLs for all publications it makes available (such PURLs will not be changed). Printed copies may be ordered through online and other distributors, including https://www. amazon.co.uk/. This book was first published on 27 June 2016. © Torkel Opsahl Academic EPublisher, 2016 All rights are reserved. 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ISBN 978-82-8348-055-9 (print) and 978-82-8348-056-6 (e-book) EDITORS’ PREFACE In recent years, there has been a growing recognition among practitioners and scholars that the common narratives of the development of interna- tional criminal law have omitted or ignored a large part of the picture. The generally referred to “history” of international criminal law starts with a recounting of the Nuremberg and Tokyo trials (or at times goes back to the post-First World War trials and attempted trials), then to the United Nations ad hoc tribunals and the permanent International Criminal Court. It is not difficult to discern a Western-centric perspective to this storyline, in which even the Tokyo trial does not receive the attention and thorough study as its counterpart in Nuremberg has. To mention this is not really to criticise. It is merely recognition of a reality that needs to be changed. In fact, this is an unfortunate reality not only in the West, but in other parts of the world as well. The Tokyo trial and post-Second World War national trials in China, for example, remain an underexamined area of study even in the Chinese literature. One of the reasons for this is the lack of first-hand materials, many of which have only become available recently, while many others are still inaccessible. For Western researchers there is also the obvious barrier of language. De- spite these difficulties, studies on these largely unexplored trials and events are vitally important. Their importance lies not only with the un- derstanding of history itself but also the mapping of the whole picture of the evolution of international criminal law, the understanding of China and Asia’s current attitudes towards international criminal law, and also the removal of our often misplaced bias. Fortunately, in recent years we have been witnessing a growing in- terest in the studies of these “forgotten” trials and events. In China, the transcripts and court documents of the Tokyo trial were published for the first time. New research centres in related areas of study have been estab- lished, and more discussions on related topics are appearing in the litera- ture. This anthology was made possible also thanks to this new develop- ment and the growing interest in these topics. In an attempt to cover different historical events and discussions and their various aspects, this anthology consists of papers on the Tokyo trial, as well as national trials conducted by different authorities including i the Chinese Nationalist government’s trials, the People’s Republic of China’s trials and the British trials in Hong Kong. Both thematic topics and reflections on the general impact of the trials are included. There are discussions that challenge or re-evaluate previously held opinions, by looking at the trials from a different perspective or exploring previously overlooked materials. The anthology also contains papers on methodolog- ical aspects of studying historical trials and on the compilation of relevant historical materials. These historical trials are not only judicial events rel- evant to legal study. They are also, or perhaps even more importantly, his- torical events that would leave historical records. Perhaps this could also be said in respect to today’s criminal tribunals, which are creating a his- torical record for the future. With such understanding, the anthology also includes a chapter on new developments in evidence collection and presentation in today’s international criminal courts. This project has received enthusiastic support from many talented and committed individuals. We would like to thank the authors for their excellent contributions. Our editorial assistants, Ms. YU Wei and Ms. Elisabeth Pirotta, provided valuable assistance in the early stage of the editing process. We owe sincere gratitude to each member of the editorial team of the Torkel Opsahl Academic EPublisher, in particular, Mr. Gareth Richards, whose professionalism and outstanding contribution guaranteed the quality of the copy-editing, as well as Ms. FAN Yuwen and Dr. SONG Yan. This project started with a conference held in Fudan Univer- sity, co-organised by Fudan University Law School and the Centre for International Law Research and Policy. This anthology would not have been possible without the generous support of these two institutions. LIU Daqun, ZHANG Binxin ii FOREWORD BY JUDGE LIU DAQUN The seventieth anniversary of the end of the Second World War is a bit- tersweet and poignant occasion. It is a moment for the world to pause and reflect upon what has become known as the deadliest conflict in history, and to commemorate the millions of lives lost in the cataclysm. I cannot commemorate the memory of the Second World War without also paying tribute to the “forgotten” holocaust, an event which has been largely over- looked for the greater part of the twentieth century and which has only garnered renewed interest in recent years. I am speaking of the Nanjing (Nanking) Massacre or Rape of Nanjing,1 six weeks of carnage that would, in retrospect, become one of the greatest atrocities committed dur- ing the Second World War era. After the fall of Nanjing, then China’s capital, on 13 December 1937, the Imperial Japanese Army proceeded to murder, rape, loot and torture in a wanton fashion. The first concern of the Japanese was to elim- inate any threat from the 90,000 Chinese soldiers who surrendered. Some of the Chinese prisoners of war were simply mowed down by machine- gun fire while others were tied up, soaked with petrol and burned alive. After the destruction of the prisoners of war, the soldiers turned their at- tention to the women of Nanjing and an outright animalistic hunt ensued. Old women over the age of 70, as well as girls under the age of eight, were dragged off to be sexually abused. More than 20,000 females were gang-raped by Japanese soldiers, then stabbed to death with bayonets or shot so they could never bear witness. Throughout the city of Nanjing, random acts of murder occurred as soldiers frequently fired their rifles into panicked crowds of civilians, killing indiscriminately. According to the findings of Nanjing War Crimes Tribunal, over 300,000 civilians and prisoners of war were brutally murdered during the Nanjing Massacre. Immediately following the conclusion of the Second World War, the Allies in Asia began to try Japanese war criminals. According to the Special Proclamation by the Supreme Commander for the Allied Powers of 19 January 1946, the International Military Tribunal for the Far East 1 The modern pinyin romanisation, Nanjing, is used here rather than the previous spelling, Nanking. iii (‘IMTFE’) was established to prosecute Japanese war criminals. At the same time, in 10 different Chinese cities the government also established military tribunals to prosecute Japanese war criminals. The Nanjing War Crimes Tribunal was established on 15 February 1946 under the Ministry of Defence to deal with crimes committed mainly in Nanjing at the end of 1937 and the beginning of 1938. The Nanjing War Crimes Tribunal con- cluded its proceedings on 26 January 1949 and acquitted General Okamu- ra Yasuji, the commander-in-chief of the China Expeditionary Army in late 1944. Twenty-four suspects were tried; eight were sentenced to death, 14 were sentenced to imprisonment, one was acquitted and one died in custody. Yet despite the egregious nature of the crimes committed by the Japanese and the subsequent international trial proceedings, the horrors of the Nanjing Massacre and the findings of Nanjing trials remain virtually unknown to people outside Asia. Their legacy is transient and fading into the recesses of history. This was unfortunately due to a complex myriad of political and military circumstances after the Second World War and the subsequent Cold War that prevented the Nanjing trials fulfilling their long-term aims and hence their historical neglect. It is true that the Nanjing trials had many shortcomings and prob- lems. First, political implications and negotiations between Japan and the United States led to the granting of immunity to Japan’s Emperor Hirohi- to. Immunity was not only granted to the emperor but also to his relatives. For example, Prince Asaka Yasuhiko, an imperial kinsman and com- mander of the entire Japanese army that attacked Nanjing, was indicted as the principal perpetrator of the Nanjing Massacre due to his alleged order to “kill all captives”. The extradition request that the Chinese government filed against him was refused by General Douglas MacArthur, the Su- preme Commander for the Allied Powers, because the prince was a rela- tive of the Japanese emperor. Second, the Nanjing trials were conducted in great haste due to the domestic situation in China after 1945. The trials also did not delve into all the atrocities committed throughout the rest of China, especially those occurring in the northern and north-eastern regions. For symbolic purpos- es, the tribunal only chose to try a few events, such as the Nanjing Massa- cre. Numerous crimes committed during the war were not investigated and prosecuted, such as the use of chemical weapons, bacteriological war- fare, the use of poison gas against soldiers and civilians, biological exper- iments on prisoners of war and civilians, the forced prostitution of so- iv