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Dealing with Desertion and Gaps in International Humanitarian Law: Changes of Allegiance in the Singapore War Crimes Trials

  • W.L. CHEAH (a1)
Abstract
Abstract

By studying British Indian Army [BIA] desertions during World War II, and British postwar trial responses, this paper explores the complicated dimensions of desertion and draws attention to the need for a more explicit and comprehensive approach to desertion in international humanitarian law. The paper focuses on less known British trials dealing with desertion, namely, war crimes trials conducted by the British in Singapore. It examines how these trials dealt with contested interpretations of desertion. Drawing on lessons from these trials, the paper then highlights gaps in today’s international humanitarian law framework, specifically, the need to take into account the realities of desertion, its different permutations, and the difficulties of differentiating between prisoners of war [POWs] and deserters.

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Assistant Professor, Faculty of Law, National University of Singapore.

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1. FAY Peter Ward, The Forgotten Army: India’s Armed Struggle for Independence 1942–1945, 1st ed. (Ann Arbor: University of Michigan Press, 1994) at 78 . The Indians heard speeches from key figures central to the Indian National Army’s [INA’s] formation: Major Fujiwara Iwaichi, head of the Japanese intelligence unit responsible for encouraging anti-British local movements; Mohan Singh, who was the head of the new INA; and Pritam Singh, a representative of the Indian Independence League. LEBRA Joyce Chapman, The Indian National Army and Japan (Singapore: Institute of Southeast Asian Studies, 2008) at 3738 .

2. It should be noted that contrary to popular myth, and as explained later in this paper, not all Indian soldiers joined the INA for nationalistic reasons, and there were also a substantial number who chose not to join the INA.

3. For a historical and legal analysis of the Red Fort Trials, see GREEN L.C., “The Indian National Army Trials” (1948) 11 Modern Law Review 47 .

4. In their interesting empirical study of defection, Oppenheim et al. highlight how governments and paramilitaries continue to use desertion or defection in conflicts with insurgents for three reasons: to decrease the number of active combatants; to “score political points” against their opponents; and to obtain information on “insurgent tactics and strategy”. OPPENHEIM Ben, STEELE Abbey, VARGAS Juan F., and WEINTRAUB Michael, “True Believers, Deserters, and Traitors: Who Leaves Insurgent Groups and Why” (2015) 59 Journal of Conflict Resolution 794 at 797 .

5. The original records of the trials and other British military records referred to in this paper are housed at the National Archives of the UK (hereinafter “TNA”). The record group is “WO 235—Judge Advocate General’s Office: War Crimes Case Files, Second World War”. The National University of Singapore also holds copies of trial transcripts. When relevant documents are available in the International Criminal Court’s Legal Tools Database, reference links will be provided. The two main trials cited in this paper are categorized in the UK National Archives as follows: “WO235/979—Defendant Ikegami Tomoyuki, Place of Trial Singapore”; “WO235/974—Defendant Takashima Shotaro, Place of Trial Singapore”. The trials will hereinafter be referred to as Ikegami Tomoyuki and others and Takashima Shotaro and another. Note that the name of the first accused in Takashima Shotaro and another is represented in the UK National Archives citation as “Takashima Shoiaro”, but the documents in the file represent his name as “Takashima Shotaro”. The TNA staff have entered sequential pagination onto the documents, many which do not have original page numbers. This pagination appears on copies held by the National University of Singapore’s Central Library. In this paper, I use this pagination as reference by putting a prefix “SP” before the number.

6. In the UK, for example, sentences for desertion are “usually custodial” and “designed to deter absentees”. BLACKETT Jeff, Rant on the Court Martial and Service Law, 3rd ed. (Oxford: Oxford University Press, 2010) at 178 .

7. Ibid.

8. See UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2005) at 265 .

9. Present-day legal commentators continue to debate the definition of desertion. Some commentators focus on the voluntariness of a deserter’s abandoning his force. Others require the deserter to display or act on an intention to sever allegiance with the country of his force. Esgain and Solf distinguish between a deserter who “voluntarily abandons his force to avoid combat or for some other purpose”, and a deserter who voluntarily abandons his force “for the purpose of bearing arms on behalf of the Detaining Power to otherwise participate in military operations of the Detaining Power” or “who at the time of his capture and surrender, makes known his previously formulated and present intent to bear arms on behalf of the Detaining Power or otherwise actively participate the military operations of the Detaining Power”: ESGAIN Albert J. and SOLF Waldemar A., “The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and Deficiencies” (1962) 41 North Carolina Law Review 537 at 555 .

10. SASSÒLI Marco, “The Status, Treatment and Repatriation of Deserters Under International Humanitarian Law” (1985) Yearbook of the International Institute of Humanitarian Law 9 at 17 .

11. FERGUSON Niall, “Prisoner Taking and Prisoner Killing in the Age of Total War: Towards a Political Economy of Military Defeat” (2004) 11 War in History 148 at 152 .

12. CLAUSE James D., “The Status of Deserters Under the 1949 Geneva Prisoner of War Convention” (1961) 11 Military Law Review 15 at 17 .

13. Ferguson, supra note 11 at 149–51.

14. Ibid., at 151.

15. Sassòli, supra note 10 at 10.

16. Oppenheim et al., supra note 4 at 3.

17. Ibid.

18. Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907 (entered into force 26 January 1910), online: ICRC <https://ihl-databases.icrc.org/ihl/INTRO/195> [1907 Hague Convention and Regulations]. Geneva Convention Relative to the Treatment of Prisoners of War, 27 July 1929 (not yet in force), online: ICRC <https://ihl-databases.icrc.org/ihl/INTRO/305> [1929 Geneva Convention]. Japan had ratified the 1907 Hague Convention and Regulations. Japan had signed but not ratified the 1929 Geneva Convention but stated that it would apply the Convention on a mutatis mutandis basis during the war.

19. Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949 (entered into force 21 October 1950), online: ICRC <https://ihl-databases.icrc.org/ihl/INTRO/375> [1949 Third Geneva Convention].

20. 1949 Third Geneva Convention, ibid., at art. 4.

21. This paper confines itself to discussing international armed conflicts.

22. BLACKBURN Kevin and HACK Karl, War Memory and the Making of Modern Malaysia and Singapore (Singapore: NUS Press, 2012) at 177 .

23. Fay, supra note 1 at 74.

24. See generally LEBRA Joyce Chapman, Japanese-Trained Armies in Southeast Asia (New York: Columbia University Press, 1977).

25. Fay, supra note 1 at 74.

26. Ibid., at 75.

27. Ibid.

28. WARREN Alan, Singapore 1942: Britain’s Greatest Defeat (London: Hambledon and London, 2002) at 274 .

29. SINGH Mohan, Soldiers’ Contribution to Indian Independence (New Delhi: Army Educational Stores, 1974) at 109 .

30. Warren, supra note 28 at 275.

31. Ibid., at 276.

32. Ibid., at 274–5.

33. Ibid., at 275.

34. Ibid.

35. DOUDS G.J., “Indian POWs in the Pacific, 1941–1945” in Kevin BLACKBURN and Karl HACK, eds., Forgotten Captives in Japanese-Occupied Asia: National Memories and Forgotten Captivities (Oxford: Routledge, 2008), 73 at 80 .

36. Warren, supra note 28, at 276. For example, the INA leadership wanted Indian POWs to be considered INA reserve units and be trained by the INA. The Japanese, however, wanted these POWs to form labour units under Mohan Singh’s command and work in co-operation with the Japanese military. Lebra, supra note 1 at 83.

37. Warren, supra note 28 at 276.

38. WARREN Alan, “The Indian Army and the Fall of Singapore” in Brian FARRELL and Sandy HUNTER, eds., Sixty Years On: The Fall of Singapore Revisited (Singapore: Eastern Universities Press, 2002), 270 at 286 .

39. Ibid.

40. The British also conducted war crimes trials in Europe. This was similarly the case for all Allied Powers. In addition, the Allies jointly organized the Nuremberg Trial and the Tokyo Trial. For an overview of Allied war crimes trials in Asia, see PICCIGALLO Philip R., The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951 (Texas: University of Texas Press, 1975). For a recently published overview of select trials, see TOTANI Yuma, Justice in Asia and the Pacific Region, 1945–1952 (Cambridge: Cambridge University Press, 2015).

41. Fay, supra note 1 at 497.

42. Green, supra note 3 at 48.

43. Fay, supra note 1 at 476; Green, supra note 3 at 52.

44. Green, supra note 3 at 55–6.

45. Ibid., at 56.

46. Fay, supra note 1 at 493.

47. The British held altogether 131 trials in Singapore. The trials were held in various locations across Singapore, such as at the Singapore Supreme Court, Victoria Memorial Hall, and Changi Prison.

48. International Criminal Court, “Royal Warrant 0160/2498—Regulations for the Trial of War Criminals” (18 June 1945), online: ICC <http://www.legal-tools.org/doc/386f77/> [1945 Royal Warrant and Regulations]. 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 [ALFSEA]. Note that ALFSEA was reorganized from 1 December 1946 into South-East Asia Land Forces (SEALF). The TNA record group is “WO 203/6092—War Crimes Instruction No. 1 (2nd ed.)” [ALFSEA Instruction No. 1].

49. 1945 Royal Warrant and Regulations, supra note 48 at art. 5. The courts did not issue comprehensive judgments with their findings. Legal issues were raised during trial proceedings and in the opening and closing statements of the prosecution and the defence, though the quantity of legal discussion in these trials was generally lower than that in contemporary war crimes trials.

50. 1945 Royal Warrant and Regulations, supra note 48 at art. 11.

51. Ibid., at art. 10.

52. In addition to the two trials considered in this paper, namely, Ikegami Tomoyuki and others and Takashima Shotaro and another, questions about the Indian victims’ status were raised in the following trials, though there were no detailed legal discussions: Gozawa Sadaichi and others, WO 235/813, TNA [Gozawa Sadaichi and others]; Okamura [Ckamura] Hideo, WO 235/820, TNA [Okamura Hideo]; Kondo Takeyoshi, WO 235/950, TNA [Kondo Takeyoshi]; Takahashi Kohei and another, WO 235/960, TNA [Takahashi Kohei and another]. In Kondo Takeyoshi, the court decided that the prosecutor had provided sufficient evidence that the victims were POWs, SP 00019. In Takahashi Kohei and another, the Department of the JAG review report took note of defence counsel’s argument that the accused had believed that the victims were “labourers” rather than POWs, but did not discuss the implications of this, SP 00004. The full citation information of these trials at the TNA are as follows: “WO 235/813—Defendant Gozawa Sadaichi, Place of Trial Singapore”; “WO 235/820—Defendant Ckamura Hideo, Place of Trial Singapore”; “WO 235/950—Defendant Kondo Takeyoshi, Place of Trial Singapore”; and “WO 235/960—Defendant Takahashi Kohei, Place of Trial Singapore”.

53. When assessing the level of legal argument in the Singapore Trials, it is important to note that the law on armed conflict remained relatively undeveloped in the immediate postwar period. In addition, the majority of trial personnel involved in the Singapore Trials did not hold formal legal qualifications. The British military faced a general shortage of legally qualified personnel when organizing these trials. These courts also did not elaborate on the reasons for their decisions, though it is possible, by reading the transcript carefully, to identify reasons for certain decisions, as demonstrated in this paper in the cases of Ikegami Tomoyuki and others and Takashima Shotaro and another. To get a more comprehensive idea of how these BIA desertions were treated in British Royal Warrant war crimes trials, it is necessary to consider a larger number of trials, including those conducted elsewhere in Asia. By highlighting desertion-related discussions in select Singapore trials, this paper hopes to serve as a springboard for further studies.

54. Ikegami Tomoyuki and others, supra note 5.

55. “Military Court for the Trial of War Criminals”, ibid., at SP 0003.

56. “Proceedings of a Military Court”, ibid., at SP 00019

57. Ibid.

58. Ibid.

59. “Proceedings of a Military Court”, Takashima Shotaro and another, supra note 5 at SP 0004.

60. Ibid., at SP 00014.

61. Ibid.

62. Ibid.

63. Ibid., at SP 00036–7.

64. “Opening Address by the Defence Counsel”, ibid., at SP 00099.

65. Testimony of Miyoshi Ren, ibid., at SP 00042.

66. Ibid.

67. Ibid.

68. Testimony of Takahashi Tatsuo, ibid., at SP 00046.

69. Ibid.

70. Ibid., at SP 00047.

71. Ibid.

72. Prosecution’s submission on oaths of allegiance, ibid., at SP 00049.

73. Ibid.

74. Ibid., at SP 00050.

75. Ibid.

76. Ibid., at SP 00052.

77. Takashima Shotaro and another, supra note 5 at SP 00054.

78. Ibid. Regulation 6 appended to the 1945 Royal Warrant stated that an “accused shall not be entitled to object to the President or any member of the Court or the Judge Advocate or to offer any special plea to the jurisdiction of the Court”.

79. Takashima Shotaro and another, supra note 5 at SP 00055.

80. Ibid., at SP 00054.

81. Ibid.. at SP 00055.

82. Ibid.

83. Ibid.

84. Ibid., at SP 00067.

85. 1945 Royal Warrant and Regulations, supra note 48 at art. 11.

86. In the file of Ikegami Tomoyuki and others, there was one advisory report from the Department of the JAG, dated 13 February 1947. There were two messages from the Department of the JAG, South East Asia Land Forces (Department of the JAG, SEALF) to JAG London, dated 10 January 1947 and 27 February 1947. In the file of Takashima Shotaro and another, there was one advisory report, dated 15 April 1947. The file also contained a copy of the same letter in the file of Ikegami Tomoyuki and others, dated 13 February 1947 (which referred to both Ikegami Tomoyuki and others and Takashima Shotaro and another).

87. “War Crimes Trial”, Department of the JAG advisory report, 13 February 1947, Ikegami Tomoyuki and others, supra note 5 at SP 00010.

88. Ibid., at SP 00013.

89. Ibid.

90. Ibid.

91. Ibid.

92. Takashima Shotaro and another, supra note 5 at SP 00055.

93. “War Crimes Trial” Department of the JAG advisory report, 15 April 1947, Takashima Shotaro and another, supra note 5, at SP 00005.

94. Ibid.

95. Ibid., at SP 00006.

96. “War Crimes Trial”, Department of the JAG, SEALF to JAG of the Forces, London, 10 January 1947, Ikegami Tomoyuki and others, supra note 5 at SP 00005. As this paper focuses on trials conducted in Singapore, and due to limitations of space, I will not consider the latter case.

97. Ibid., at SP 00008. It is noteworthy that the report also found that the question of the victims’ status “is one of fact, though dependent on considerations of law”, thus categorizing this as a mistake of fact.

98. Message from F.G.T. Davis of the Department of the JAG, SEALF to JAG of the Forces, London, 27 February 1947, Takashima Shotaro and another, supra note 5 at SP 00007. Note that a copy of this letter, which refers to both Ikegami Tomoyuki and others and Takashima Shotaro and another, is available in the files of both cases.

99. 1949 Third Geneva Convention, supra note 19 at art. 7.

100. Clause, supra note 12 at 37–8.

101. This is because, based on art. 5 of the Third Geneva Convention, an individual attains POW status when he or she has “fallen into the power of the enemy”. Ideally, a deserter should declare his or her intention to desert “at the time of falling into the power of the enemy” to avoid POW status. However, practically speaking, it would only be possible for the detaining authority to determine the status of the individual through questioning at a later stage, after he or she had been captured.

102. Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (entered into force 21 October 1950), online: ICRC <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AE2D398352C5B028C12563CD002D6B5C&action=openDocument> [1949 Fourth Geneva Convention]. Sassòli’s “first opportunity” addresses itself to those who have “acted upon his intent to sever his allegiance to the Power he was serving by abandoning his forces … or, in a combat situation, by abstaining from fighting immediately prior to falling into the power of the enemy and seizing the first opportunity to confirm to the Detaining Power his willingness to sever his allegiance to the Power on which he depends”. Sassòli, supra note 10 at 13.

103. Esgain and Solf, supra note 9 at 559.

104. Sassòli, supra note 10 at 21–2.

105. “War Crimes Trial”, message from F.G.T. Davis, Department of the JAG, SEALF to JAG of the Forces, London, 10 January 1947, Ikegami Tomoyuki and others, supra note 5 at SP 00008.

106. Ibid., at SP 00009.

107. Ibid.

108. Sassòli, supra note 10 at 25.

109. See generally DREA Edward J., “In the Army Barracks of Imperial Japan” (1989) 15 Armed Forces and Society 329 .

110. Testimony of Takahashi Tatsuo, Ikegami Tomoyuki and others, supra note 5 at SP 00046.

111. Ibid.

112. Ibid., at SP 00012.

113. Ibid., at SP 00013.

114. JIA Bing Bing, “The Plea of Superior Orders in the Hong Kong Trials” in Suzannah LINTON, ed., Hong Kong’s War Crimes Trials (Oxford: Oxford University Press, 2013), 169 . On superior orders in the Singapore Trials, see CHEAH Wui Ling, “The Superior Orders Defence at the Post-War Trials in Singapore” in Kirsten SELLARS, ed., Trials for International Crimes in Asia (Cambridge: Cambridge University Press, 2015), 75 .

115. HELLER Kevin Jon, “Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis” (2008) 6 Journal of International Criminal Justice 419 at 420 . I do not aim to enter into a comprehensive discussion of MLE here. My aim is to highlight the fact that international law’s lack of explicit guidance on desertion may result in MLEs made by lower-ranking personnel, and that these mistakes are recognized to a certain extent by the Statute of the International Criminal Court.

116. “Closing Address in Defence of Asako”, Takashima Shotaro and another, supra note 5 at SP 00091.

117. Ibid. I do not aim to enter into a comprehensive discussion of MLE here. My aim is to highlight the fact that international law’s lack of explicit guidance on desertion may result in different types of mistakes (mistakes of fact and MLEs), not all of which exclude criminal responsibility.

118. Art. 32, Rome Statute of the International Criminal Court, 17 July 1998 (entered into force 1 July 2002), online: ICC <https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>.

119. Heller, supra note 115 at 444. See also Heller’s suggestions on how the ICC Statute may be amended to clearly require MLEs to be reasonable before they are recognized, at 444–5.

* Assistant Professor, Faculty of Law, National University of Singapore.

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