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British War Crimes Trials in Europe and Asia, 1945–1949: A Comparative Study

  • W.L. CHEAH and MORITZ VORMBAUM
Abstract

Between 1945 and 1949, the British military conducted a large number of war crimes trials in Europe and Asia. Based on historical archival records, among other sources, this article evaluates and compares the British authorities’ implementation of the 1945 Royal Warrant and war crimes trials in Europe and Asia, with a specific focus on trials organized in Germany and Singapore. By examining the British war crimes trial experience in those two jurisdictions, the article analyzes factors shaping the evolution of the Royal Warrant's legal framework and trial model in different contexts. It therefore contributes to the growing historical work on post-Second World War trials and current debates among scholars of transitional justice and international criminal law on the contextual factors that impact on war crimes trials.

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1 Charlesworth, L., ‘Forgotten Justice: Forgetting Law's History and Victim's Justice in British “Minor” War Crime Trials in Germany 1945–8’, (2008) 74 Amicus Curiae 210. Although the author exclusively refers to the British trials in Germany, the same is true, without doubt, for the trials conducted in Asia.

2 Schmidt, U., ‘“The Scars of Ravensbrück”: Medical Experiments and British War Crimes Policy, 1945–1950’, (2005) 23 German History 20, at 21.

3 The subsequent Nuremberg trials by the US certainly have received greater attention than the trials by the other three Allied Powers, see, for example, K.J. Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (2012).

4 Apart from laws limiting access to archival documents, Narayanan argues that there was less interest in individual Allied war crimes trials after the war as ‘realism became a dominant political philosophy’ and scholars focusing on matters of ‘Realpolitik’ rather than ‘justice’. Narayanan, A., ‘Japanese Atrocities and British Minor War Crimes Trials after World War II in the East’, (2006) 33 Jebat: Malaysian Journal of History, Politics and Strategic Studies 10.

5 See, for example, M. Bergsmo, Cheah W.L. and Yi P. (eds.), Historical Origins of International Criminal Law (2014–-2015), Vols. 1–4; J. Cramer, Belsen Trial 1945 (2012); G. Fitzpatrick, T. McCormack and N. Morris (eds.), Australia's War Crimes Trials 1945–51 (2016); K. Hassel, Kriegsverbrechen vor Gericht (2009); B. Kushner, Men to Devils, Devils to Men: Japanese War Crimes and Chinese Justice (2015); S. Linton (ed.), Hong Kong's War Crimes Trials (2013); P.R. Piccigallo, The Japanese On Trial: Allied War Crimes Operations in the East, 1945–1951 (2011); K. Sellars (ed.), Trials for International Crimes in Asia (2015); Y. Totani, Justice in Asia and the Pacific Region, 1945–1952: Allied War Crimes Prosecutions (2015); S. Wilson, et al., Japanese War Criminals: The Politics of Justice After the Second World War (2017).

6 See Hassel, supra note 5, at 239.

7 The full and original transcripts and related records of the trials analyzed in this article are at the National Archives of the United Kingdom (hereinafter, TNA). TNA staff have entered sequential pagination on most records. When available, this pagination is used, placing ‘SP’ before the number. Otherwise, and if available, page and paragraph numbers are used. For the trials in Germany, the relevant records at the International Research and Documentation Centre for War Crimes Trials at Philips-Universität Marburg have also been evaluated.

8 On comparative law methodology in general see, for example, M. Siems, Comparative Law (2014), 11; K. Zweigert and H. Kötz, Einführung in die Rechtsvergleichung (1996), 33–47.

9 On different macro and micro approaches of comparative law see, for example, G. Samuel, An Introduction to Comparative Law Theory and Method (2014), 50–3. On the particularities of comparative law and legal history see Gordley, J., ‘Comparative Law and Legal History’, in Reimann, M. and Zimmermann, R. (eds.), The Oxford Handbook on Comparative Law (2006), 754–73; on comparative law and international criminal law see Vasiliev, S., ‘The Usages and Limitations of Comparative Law and the Methodology of International Criminal Procedure’, (2014) 2 Revista Eletrônica de Direito Penal AIDP-GB 166–96.

10 Although they had the same legal basis, the notion of two separate processes is possible because of the broad, open-ended, and fragmentary nature of the rules in the Royal Warrant.

11 For trials statistics see Section 3, infra.

12 Hong Kong was another location where the British held many trials. Singapore and Hong Kong, which were both former British Crown colonies, had ‘relatively ample jails’ and ‘relatively abundant facilities for hearing cases’. They were therefore the locations for many trials of crimes committed elsewhere. See Wilson et al., supra note 5, at 110.

13 Declaration of the Four Nations on General Securities, Moscow Conference of Foreign Secretaries 1943, 30 October 1943 (hereinafter, Moscow Declaration).

14 Statement of Atrocities, Declaration of the Four Nations on General Securities, Moscow Conference of Foreign Secretaries 1943, 30 October 1943 (hereinafter, Statement on Atrocities).

15 Ibid.

16 On 29 August 1945, the United Nations War Crimes Commission (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’ should 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’. Summary Recommendations Concerning Japanese War Crimes and Atrocities, Note by the Secretary General, United Nations War Crimes Commission, C.145(1), 29 August 1945, 2, III. British decision-makers would later cite this UNWCC decision when deciding on the framework of war crimes prosecutions in Asia. War Office, South East Asia Command, Military Headquarters Papers, DAG to HQ ALFSEA, Dutch Right to Claim War Crimes Suspects and Hold Them in N.E.I, 5 June 1946, para. 3: WO 203/6087, TNA.

17 See, for example, M.C. Bassiouni, Introduction to International Criminal Law (2013), 1061–2; A. Rückerl, NS-Verbrechen vor Gericht (1984), 98–100.

18 For an overview of trial locations in Asia, see Wilson et al., supra note 5, at 74–8.

19 Art. 1, Agreement on Control Machinery in Germany, Adopted by the European Advisory Commission, 14 November 1944.

20 Recent studies exploring post-war trials’ impact on decolonization and politics in Asia are K. von Lingen (ed.), War Crimes Trials in the Wake of Decolonization (2016); K. von Lingen (ed.), Debating Collaboration and Complicity in War (2016).

21 According to an internal list of trials, there were 357 trials by the British military in Germany and other European countries. Judge Advocate General's Office, War Crimes in the Far East, Index: WO 235, TNA.

22 In 1964, the German Minister of Justice reported to the Bundestag that British military courts carried out trials of 1,085 persons, apparently also taking into account the trials before the Control Commission courts. See Deutscher Bundestag, Drucksache IV/3124, 10.

23 Twenty trials in 1945, 181 trials in 1946, 65 trials in 1947, 62 in 1948, and only one trial (the very comprehensive trial of Field Marshal Erich von Manstein) in 1949; see Hassel, supra note 5, at 147, 157. In addition, Hassel states there were 54 trials with 146 accused persons before the Control Commission courts.

24 See Wilson et al., supra note 5, at 97.

25 This figure is based on trial records at the TNA. One of the 131 trials is recorded by the TNA as ‘missing at transfer’, available at discovery.nationalarchives.gov.uk/results/r?_q=WO+235%2F1018 (accessed 11 March 2018).

26 War Office, Royal Warrant and Regulations, War Criminals: General (Code 94A): Regulations and Procedures for Trial of German and Japanese War Criminals, Army Order 81/1945, 18 June 1945, para. 1: WO 32/12210, TNA. See also Rogers, A., ‘War Crimes Trials under the Royal Warrant: British Practice 1945–1949’, (1990) 39 International and Comparative Law Quarterly 786.

27 Royal Warrant and Regulations, supra note 26, para. 1.

28 Ibid., Reg. 9.

29 Ibid.

30 Ibid., Reg. 11.

31 Ibid., Reg. 10.

32 British Army of the Rhine (BAOR) Administrative Instruction No. 104, Investigation of Atrocities and Trial of War Criminals, August–September 1945: WO 311/857, TNA. BAOR Instruction No. 104 was amended in 1947. However, the amendments did not affect the issues dealt with in this article.

33 Allied Land Forces South East Asia (ALFSEA) War Crimes Instruction No. 1, Investigation of War Crimes and Trial of War Criminals, December 1945: WO 325/53, TNA. This instruction was amended several times. We state the exact amendment when referring to it.

34 Royal Warrant and Regulations, supra note 26, Reg. 3.

35 Ibid.

36 After the end of the war, the Allied powers reduced the extent of German territory and divided the remaining parts into four zones of occupation, each of which was administered by one of the victorious powers.

37 See Cramer, supra note 5, at 36. Cramer also describes the reluctance of the British to co-operate with the UNWCC.

38 BAOR Instruction No. 104, supra note 32, Part II, para. 25.

39 Judge Advocate General's Office, DALS/1/28Q, DALS/0185/416, Minute by Brig. Henry Shapcott, Director of Army Legal Services (DALS), 23 November 1948, para. 20: WO 311/646, TNA.

40 ALFSEA Instruction No. 1, supra note 33, Part 1, para. 23.

41 Minute by Shapcott, supra note 39, para. 21.

42 Ibid.

43 ALFSEA Instruction No. 1 (2nd edition), supra note 33, Part 1, para. 27. The first trial, Gozawa Sadaichi and Others, began on 21 January 1946. Judge Advocate General's Office, War Crimes Case Files, Gozawa Sadaichi and Others, Case No. 1, 26 October 1945–28 April 1946: WO 235/813, TNA. The last trial, Mizuno Keiji, was concluded on 12 March 1948. Judge Advocate General's Office, War Crimes Case Files, Mizuno Keiji, Case No. 298, 8 March 1948–16 May 1948: WO 235/1110, TNA.

44 The courts were established by UNWCC, Control Commission Courts in the British Zone of Germany, Ordinance No. 68, Control Commission Courts, Misc. No. 114, 9 December 1946. Before that, Allied Military Government courts were competent for trials on the basis of Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, 20 December 1945. However, they prosecuted a total of only about ten persons. Cf. Form, W., ‘Der Oberste Gerichtshof für die Britische Zone: Gründung, Besetzung und Rechtsprechung in Strafsachen wegen Verbrechen gegen die Menschlichkeit’, in Justizministerium Nordrhein-Westfalen (NRW) (ed.), Verbrechen gegen die Menschlichkeit: Der Oberste Gerichtshof der Britischen Zone (2012), 8, at 23.

45 This was similarly the case for ALFSEA Instruction No. 1. See ALFSEA Instruction No. 1, supra note 33, Part 1, para. 4. Cf. BAOR Instruction No. 104, supra note 32, Part 1, para. 3.

46 Crimes against peace, however, did not play a role in practice. Under Art. II(1)(c), Control Council Law No. 10, ‘crimes against humanity’ were defined as follows: ‘Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.’

47 See German Supreme Court for the British Zone, Military Government Gazette Germany, British Zone of Control, Ordinance No. 98, 1 September 1947, Preamble.

48 G. Werle and F. Jessberger, Principles of International Criminal Law (2014), 12.

49 For an overview of the UNWCC's tasks and history, see D. Plesch and S. Sattler, ‘Before Nuremberg: Considering the Work of the United Nations War Commission of 1943–1948’, in Bergsmo et al., supra note 5, Vol. 1, 437; Morris, N. and Knaap, A., ‘When Institutional Design Is Flawed: Problems of Cooperation at the United Nations War Crimes Commission, 1943–1948’, (2017) 28 European Journal of International Law 513.

50 Wilson et al., supra note 5, at 44.

51 Judge Advocate General's Office, War Crimes in Far East, Miscellaneous Correspondence, United Kingdom Liaison Mission in Japan to War Crimes Section, Foreign Office, London, 16 April 1947: WO 311/541, TNA.

52 Ibid.

53 Ibid.

54 BAOR Instruction No. 104, Part 104, para. 3, supra note 32. At least an internal letter by the DJAG to the General Officer Commanding in Chief of August 1947 set out some rough guidelines to solve this problem. According to this document, Royal Warrant courts would not have jurisdiction in three scenarios: (i) A war crime was in question, which had been committed against an allied national on the territory which later became the British occupation zone and for which a foreign government asked for extradition of an alleged perpetrator in British custody. In these cases, the person should not be extradited, but he or she should rather be tried before a Control Commission court; (ii) When the nationality of the victim was unclear, due to the lack of jurisdiction of British military courts for crimes against non-Allied nationals, a Control Commission court should take over such cases, given that Control Council Law No. 10 allowed for such trial; and (iii) Victims were of both Allied and German nationalities. See Judge Advocate General's Office, Cases submitted by Control Commission for Germany for Trial under Army Order 81 of 1945, 27 August 1947: WO 311/31, TNA.

55 See International Military Tribunal (Nuremberg), Judgment of 1 October 1946, in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946 (1947), 14.

56 E.J. Drea, Japan's Imperial Army: Its Rise and Fall, 1853–1945 (2009), 260.

57 Royal Warrant and Regulations, supra note 26, Reg. 8(i).

58 Judge Advocate General's Office, Josef Kramer and 44 others, Bergen-Belsen and Auschwitz concentration camps case, Case No. 12, 17 September–17 November 1945: WO 235/13, TNA. See also UNWCC, Law Reports of Trials of War Criminals, Vol. II, The Belsen Trial (1947). The crimes committed at Auschwitz, in general, did not fall under the jurisdiction of the British courts in Germany. However, among the accused in the Belsen trial, all of whom were captured at the Bergen-Belsen concentration camp (located in the British zone), 12 had previously served at Auschwitz. The crimes which these accused committed there were made part of the indictment.

59 Judge Advocate General's Office, Erich Heyer and six others, Essen-West case, Case No. 44, 18–19, 21–22 December 1945: WO 235/56, TNA. See also UNWCC, Law Reports of Trials of War Criminals, Vol. I (1947), 88–92.

60 Heyer and six others, 25 July 1949, (without page numbers), supra note 59.

61 Ibid., 4 August 1949.

62 Royal Warrant and Regulations, supra note 26, Reg. 8(i)(a).

63 Judge Advocate General's Office, War Crimes Case Files, Kokubo Nagataro and Others, Case No. 101, 1 September 1945–8 December 1946: WO 235/913, TNA.

64 Ibid., War Crimes Courts (DJAG Review Report), SP 9.

65 Cramer, supra note 5, at 49–50.

66 Ibid.

67 War Office, General Headquarters, Far East Land Forces, War Crimes, Quarterly Historical Report, for the quarter ending December 1946, para. 4(b): WO 268/102, TNA.

68 Judge Advocate General's Office, War Crimes in Far East, Miscellaneous Correspondence, M.C. Dempsey, Commander-in-Chief to Ronald F. Adam, Adjutant General, Delay in Bringing Minor War Criminals to Trial, 31 December 1945, 1: WO 203/4927A, TNA.

69 Judge Advocate General's Office, War Crimes Case Files, Hasegawa Hidefumi, Case No. 213, 31 July–14 September 1947, SP 00059: WO 235/1025, TNA.

70 Ibid., SP 00060.

71 N. Boister and R. Cryer, The Tokyo International Military Tribunal: A Reappraisal (2008), 136–7.

72 Ibid.

73 See, for example, Judge Advocate General's Office, War Crimes Case Files, Karl Buck and Others, Gaggenau case, Case No. 155, 6–10 May 1946, Flag 4, 15: WO 235/185, TNA; Arno Heering, 25–26 January 1946, UNWCC, Law Reports of Trials of War Criminals, Vol. XI (1949), 79; Kurt Student, 6–10 May 1946, UNWCC, Law Reports of Trials of War Criminals, Vol. IV (1948), 118, 120; Gozawa Sadaichi and Others, supra note 43.

74 See, for example, Kurt Student, supra note 73, at 118, 120.

75 See, for example, Buck and Others, supra note 73, Flag 4, 15; General von Mackensen and General Maelzer, 18–30 November 1945, UNWCC, Law Reports of Trials of War Criminals, Vol. VIII (1949), 3; Gozawa Sadaichi and Others, supra note 43.

76 See for example Helmut von Ruchteschell, 5–21 May 1947, UNWCC, Law Reports of Trials of War Criminals, Vol. IX (1949), 82, 88.

77 Judge Advocate General's Office, War Crimes Case Files, Hans Eck and Others, SS Peleus case, Case No. 5, October–December 1945, 2: WO 235/5, TNA. The DJAG argued: ‘The deliberate killing of shipwrecked sailors, themselves not even combatant, after their ship is torpedoed, is a breach of the customary laws of war not of any Article of a specific Convention’.

78 See, for example, Max Wielen and 17 others, Stalag Luft III case, 1 July–30 September 1947, UNWCC, Law Reports of Trials of War Criminals, Vol. XI (1949), 31, 51; Mackensen and Maelzer, supra note 75, at 3ff.

79 For example, Mackensen and Maelzer, supra note 75, at 6.

80 See Heinz Eck and four others, Peleus trial, 17–20 October 1945, UNWCC, Law Reports of Trials of War Criminals, Vol. I (1947), 11.

81 L. Oppenheim and H. Lauterpacht, International Law (1940), Vol. 2, which was referred to in the Belsen trial, the Mackensen trial and in many others.

82 W.E. Hall and A.P. Higgins, A Treatise on International Law (1924), referred to in the Mackensen trial.

83 T.J. Lawrence, The Principles of International Law (1915), referred to, for example, in the Ruchteschell trial.

84 Gozawa Sadaichi and Others, Opening Address by Defence Counsel, SP 00143, supra note 43.

85 Gozawa Sadaichi and Others, Notes of Final Address by Prosecutor, SP 00383, supra note 43. Interestingly, a similar strategy was adopted by the Tokyo tribunal when addressing jurisdictional challenges.

86 Ibid.

87 Ibid.

88 Ibid.

89 Wenck, A.-E., ‘Verbrechen als “Pflichterfüllung“? Die Strafverfolgung nationalsozialistischer Gewaltverbrechen am Beispiel des Konzentrationslagers Bergen-Belsen’, in Buck, K. et al. (eds.), Die frühen Nachkriegsprozesse (1997), 38, at 40. Cf. Cramer, supra note 5, at 29.

90 Heyer and six others, supra note 59.

91 Ibid., Major Tayleur, Closing Speech, 21 December 1945, at 65.

92 Ibid.

93 BAOR Instruction No. 104, supra note 32, Part II, para. 17. ALFSEA Instruction No. 1, supra note 33, Part II, para. 48.

94 Josef Kramer and 44 others, supra note 58, at 13. The spelling errors in the trial transcripts demonstrate how scarce resources were and the rushed manner in which the trials were conducted. In the end, Herbert Arthur Smith was the legal expert in the trial. The limited knowledge of the defence counsel with regard to international law was sometimes apparent. At the very beginning of the Belsen trial, the DJAG asked the defence: ‘Is it your point that you would like to attack the charge sheet but that you cannot do it until you have had expert advice?’ The response of counsel Major Cranfield was: ‘Yes. We find ourselves in a considerable difficulty in that between us we have very little knowledge of international law. It appears to us that there are some points on international law which arise in this case and we do not know where we are because we have not sufficient knowledge to apply our minds to the points’.

95 Judge Advocate General's Office, War Crimes Case Files, Ikegami Tomoyuki and Others, Case No. 167, 19 November 1946–27 April 1947: WO 235/979, TNA.

96 Ibid., Prosecution's Submission on Oaths of Allegiance, at SP 00051.

97 Ibid., at SP 00052.

98 Ibid., War Crimes Trial, DJAG Review Report, 13 February 1947, SP 00013.

99 Ibid.

100 BAOR Instruction No. 104, supra note 32, Part 1, para. 2. These were: Making use of poisoned and otherwise forbidden arms and ammunition (a), killing of the wounded (b), refusal of quarter (c), treacherous request of quarter (d), maltreatment of dead bodies on battlefield (e), ill-treatment of prisoners of war (f), firing on undefended localities (h), abuse of the flag of truce (i), firing on the flag of truce (j), misuse of the Red Cross flag and emblem and other violations of the Geneva Convention (k), use of civilian clothing by troops to conceal their military character during battle (l), bombardment of hospital and other privileged buildings (m), improper use of privileged buildings for military purposes (n), poisoning of wells and streams (o), pillage and purposeless destruction (p).

101 ALFSEA Instruction No. 1, supra note 33, Part 1, para. 4. These were: Shooting and killing without justification (a), shooting and killing on the false pretence that the prisoner was escaping (b), assault with violence causing death, and other forms of murder or manslaughter (c), shooting, wounding with bayonet, torture and unjustified violence (d), other forms of ill-treatment causing the infliction of grievous bodily harm (e), theft of money and goods (f), unjustified imprisonment (g), insufficient food, water and clothing (h), lack of medical attention (i), bad treatment in hospitals (j), employment on work having direct connection with the operations of the war, or on unhealthy or dangerous work (k), detaining allied personnel in an area exposed to the fire of the fighting zone (l), making use of prisoners of war or civilians as a screen (m); and such cases as attacks on hospital ships, and on merchant ships without making provisions for survivors (n).

102 Oppenheim and Lauterpacht, supra note 81, at 451. The list of war crimes by Oppenheim and Lauterpacht is more comprehensive, although the list in BAOR Instruction No. 104 sporadically includes war crimes which are not explicitly included in the list of Oppenheim and Lauterpacht, for example ‘[p]oisoning of wells and streams’. BAOR Instruction No. 104, supra note 32, Part 1, para. 2(o).

103 Since 1941, under Sir Arnold McNair as chairman, the Cambridge Commission had analyzed the possibility of creating an international criminal court to prosecute war crimes; the sub-committee on war crimes was led by General Marcel de Baer from Belgium. Cf. UNWCC, History of the United Nations War Crimes Commission and the Development of the Laws of War (1948), 94–9.

104 ALFSEA Instruction No. 1, supra note 33, Part 1, para. 4(d).

105 Ibid., para. 4 (h)–(j).

106 Ibid., para. 4(k).

107 Ibid., para. 4(n).

108 See Cramer, supra note 5, at 50–1, who quotes an interim report of the war crimes investigation team of 22 June 1945, in which the officer complains about ‘the lack of certainty as to the precise legal position’.

109 Minute by Shapcott, supra note 39, para. 5.

110 Ibid., para. 19.

111 ALFSEA Instruction No. 1, supra note 33, Part 1, para. 15.

112 Ibid.

113 In Germany, a number of lower-ranking military and concentration camp guards were prosecuted before the Royal Warrant courts. However, there were also higher-ranking figures brought before the courts, such as Josef Cramer, the commandant of the Bergen-Belsen concentration camp, or Field Marshal Erich von Manstein.

114 BAOR Instruction No. 104, supra note 32, Part I, para. 31.

115 Ibid., para. 33.

116 Minute by Shapcott, supra note 39.

117 Ibid.

118 The first Belsen trial, which concerned crimes committed at Bergen-Belsen and Auschwitz, took place on 19 October–17 November 1945. It was followed by two more trials concerning crimes in, among others, Belsen concentration camp that were much shorter (Belsen trial II, 16–22 May 1946; Belsen trial III, 14–16 April 1948) due to the lower number of defendants.

119 18 March–3 May 1946. This trial dealt with the major accused persons and it was followed by six further Ravensbrück trials.

120 5 December 1946–3 February 1947. There were a number of further shorter trials that dealt with crimes in the main camp as well as adjunct camps of Neuengamme.

121 For an overview of the trials, see Hassel, supra note 5, at 262–79.

122 The longest trial was Judge Advocate General's Office, War Crimes Case Files, Otsuka Misao and Others, Case No. 163, 8 August 1946–27 April 1947: WO 235/975, TNA. Examples of trials lasting one day include Judge Advocate General's Office, War Crimes Case Files, Tamura Shinji, Case No. 4, 27 January–28 April 1946: WO 235/816, TNA; and Judge Advocate General's Office, War Crimes Case Files, Aoki Toshio, Case No. 5, 17 November 1945–28 April 1946: WO 235/817, TNA.

123 ALFSEA Instruction No. 1, supra note 33, Part II, para. 40.

124 BAOR Instruction No. 104, supra note 32, Part II, para. 23.

125 ALFSEA Instruction No. 1, supra note 33, Part II, para. 52.

126 War Office, South East Asia Command, Military Headquarters Papers, Procedure for War Criminal Trials in SEAC, 17 November 1945, paras. 1–4: WO 203/4571A, TNA.

127 War Office, South East Asia Command, Military Headquarters Papers, Chief of Staff to Supreme Allied Commander, 19 November 1945: WO 203/4926A, TNA.

128 Honig, F., ‘Kriegsverbrecher vor englischen Militärgerichten’, (1947) 62 Schweizerische Zeitschrift für Strafrecht/Revue Pénale Suisse 20, at 28.

129 Cramer, supra note 5, at 155–6 (in German: ‘Gerichtslotse’).

130 Hasegawa Hidefumi, SP 00114, supra note 69.

131 Ibid., DJAG Review Report, SP 00004.

132 See Wilson et al., supra note 5, and Narayanan, supra note 4, at 9, for the Singapore trials; see Hassel, supra note 5, at 201, for the German trials.

133 It should also be noted there were also significant segments of the public who were unhappy with trial results. Narayanan, supra note 4, at 11.

134 News Chronicle, 19 November 1945, quoted verbatim in Cramer, supra note 5, at 325.

135 Smith, S. C., ‘Crimes and Punishment: Local Responses to the Trial of Japanese War Criminals in Malaya and Singapore, 1946–48’, (1997) 5 South East Asia Research 52.

136 An example of work highlighting contemporary issues raised in these trials is Cheah W.L., ‘The Superior Orders Defence at the Post-War Trials in Singapore’, in Sellars, supra note 5, at 100. On the British Royal Warrant trials held in Hong Kong, see generally Linton, supra note 5.

137 According to Fletcher, L.E., Weinstein, H.M. and Rowen, J., ‘Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective’, (2009) 31 Human Rights Quarterly 170, a uniform approach, which includes war crimes trials, ‘appears to emphasize a standardized “tool kit” of interventions that can be applied in different contexts’. By contrast, a more contextual approach ‘implies thinking of specific mechanisms as processes within a social and political continuum’. See also Conley-Zilkic, B., Brechenmacher, S. and Sarkar, A., ‘Assessing the Anti-Atrocity Toolbox’, (2016) Occasional Paper World Peace Foundation 1, at 4. This includes the flexibility to make changes or adjustments along the way in response to context-specific challenges.

138 Dickinson argues that hybrid tribunals, such as the Kosovo War and Ethnic Crimes Court and Cambodia's Extraordinary Chambers in the Courts of Cambodia, take a more effective contextual approach, being the result of ‘on-the-ground innovation’ instead of ‘grand institutional design’. Dickinson, L. A., ‘Transitional Justice in Afghanistan: The Promise of Mixed Tribunals’, (2002) 31 Denver Journal of International Law and Policy 27.

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

** Professor, Faculty of Law, University of Münster []. The authors would like to express their gratitude to the two anonymous reviewers, Gerhard Werle, Wolfgang Form and Sergey Vasiliev for very helpful comments. They would also like to thank Gareth Richards and Helena Dodge-Wan for proofreading and the Research Fund of Humboldt-Universität zu Berlin and National University of Singapore for financial support.

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