Here is a lovely little Japanese war-crime

Discussions on the Holocaust and 20th Century War Crimes. Note that Holocaust denial is not allowed. Hosted by David Thompson.
David Thompson
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Post by David Thompson » 21 Jul 2003 04:05

The posts on Lieutenant Commander Dudley W. "Mush" Morton, commander of the submarine USS Wahoo and credited with sinking 20 Japanese vessels during 7 patrols in 1943, now have a thread of their own at:

http://www.thirdreichforum.com/viewtopic.php?t=27221

Xanthro
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Post by Xanthro » 22 Jul 2003 01:10

David Thompson wrote:Xanthro -- You said: "First, the Japanese in WWII were signatories to the 3rd Geneva Convention, they were only bound by the Hague Convention of 1906, which doesn't address POWs."
I believe all the international convention address prisoner issues, but sometimes my fingers don't keep up with my mind, or maybe it's the other way around. I thought I had written the Hague doesn't address POWs to the same degree.
David Thompson wrote:](1) The text of the 1929 Geneva Convention Relative to the Treatment of POWs, on-line at:

http://www.yale.edu/lawweb/avalon/lawofwar/geneva02.htm

lists H.M. the Emperor of Japan as one of the signatory powers.
(2)

Maybe I'm blind, but I still don't see Japan listed.

The Hague Convention of 1907 Regarding the Laws and Customs of War on Land (Hague IV) has an entire chapter (Chapter II) dealing with POWS. You can see it on-line at:

http://www.yale.edu/lawweb/avalon/lawofwar is actually one of the sources I use, but it does have some mistakes in it. Mostly typos.

Xanthro

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Post by David Thompson » 22 Jul 2003 04:16

Xanthro -- The 1929 Geneva Convention starts out with a recitation of the parties -- H.M. the Emperor of Japan appears a little more than halfway down the list (distinguished by bold type here):

"The President of the German Reich, the President of the United States of America, the Federal President of the Republic of Austria, His Majesty the King of the Belgians, the President of the Republic of Bolivia, the President of the Republic of the United States of Brazil, His Majesty the King of Great Britain, Ireland, and the British Dominions beyond the Seas, Emperor of India, His Majesty the King of the Bulgarians, the President of the Republic of Chile, the President of the Republic of China, the President of the Republic of Colombia, the President of the Republic of Cuba, His Majesty the King of Denmark and Iceland, the President of the Dominican Republic, His Majesty the King of Egypt, His Majesty the King of Spain, the President of the Republic of Estonia, the President of the Republic of Finland, the President of the French Republic, the President of the Hellenic Republic, His Serene Highness the Regent of Hungary, His Majesty the King of Italy, His Majesty the Emperor of Japan, the President of the Republic of Latvia, Her Royal Highness the Grand Duchess of Luxembourg, the President of the United States of Mexico, the President of the Republic of Nicaragua, His Majesty the King of Norway, Her Majesty the Queen of the Netherlands, His Imperial Majesty the Shah of Persia the President of the Republic of Poland, the President of the Portuguese Republic, His Majesty the King of Rumania, His Majesty the King of the Serbs, Croats and Slovenes, His Majesty the King of Siam, His Majesty the King of Sweden, the Swiss Federal Council, the President of the Czechoslovak Republic, the President of the Turkish Republic, the President of the Oriental Republic of Uruguay, [and] the President of the Republic of the United States of Venezuela;

recognizing that, in the extreme case of a war, it will be the duty of every Power to diminish, so far as possible the unavoidable rigors thereof an to mitigate the fate of prisoners of war . . ."

Xanthro
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Post by Xanthro » 22 Jul 2003 07:25

David Thompson wrote:Xanthro -- The 1929 Geneva Convention starts out with a recitation of the parties -- H.M. the Emperor of Japan appears a little more than halfway down the list (distinguished by bold type here):

"The President of the German Reich, the President of the United States of America, the Federal President of the Republic of Austria, His Majesty the King of the Belgians, the President of the Republic of Bolivia, the President of the Republic of the United States of Brazil, His Majesty the King of Great Britain, Ireland, and the British Dominions beyond the Seas, Emperor of India, His Majesty the King of the Bulgarians, the President of the Republic of Chile, the President of the Republic of China, the President of the Republic of Colombia, the President of the Republic of Cuba, His Majesty the King of Denmark and Iceland, the President of the Dominican Republic, His Majesty the King of Egypt, His Majesty the King of Spain, the President of the Republic of Estonia, the President of the Republic of Finland, the President of the French Republic, the President of the Hellenic Republic, His Serene Highness the Regent of Hungary, His Majesty the King of Italy, His Majesty the Emperor of Japan, the President of the Republic of Latvia, Her Royal Highness the Grand Duchess of Luxembourg, the President of the United States of Mexico, the President of the Republic of Nicaragua, His Majesty the King of Norway, Her Majesty the Queen of the Netherlands, His Imperial Majesty the Shah of Persia the President of the Republic of Poland, the President of the Portuguese Republic, His Majesty the King of Rumania, His Majesty the King of the Serbs, Croats and Slovenes, His Majesty the King of Siam, His Majesty the King of Sweden, the Swiss Federal Council, the President of the Czechoslovak Republic, the President of the Turkish Republic, the President of the Oriental Republic of Uruguay, [and] the President of the Republic of the United States of Venezuela;

recognizing that, in the extreme case of a war, it will be the duty of every Power to diminish, so far as possible the unavoidable rigors thereof an to mitigate the fate of prisoners of war . . ."
I see. Japan was represented at the convention, but Japan never ratified the treaty, hence they are not a signatory.

This would be the same as if the US Senate didn't ratify the treaty, you are not a signatory, though someone may have technically signed on that nations behalf.

Xanthro

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Post by michael mills » 22 Jul 2003 07:56

Some questions:

1. What would have been the legal position if the POWs who had abandoned the sinking ship had simply been left in the water, and had died of drowning, exposure, or conversion to shark-food? Was the Japanese ship under any obligation to rescue them? Would leaving them to die be a war-crime?

What if a ship observed shipwrecked sailors floating in a sea covered with burning gasoline, so that the sailors were being burned, and opened fire on them to kill them quickly?

There is a similar case from the Falklands War. A British soldier shot dead an Argentinian POW trapped in a burning shed. The soldier was court-martialled but acquitted on the grounds that his act had one of mercy.

2. What was the legal position of the US submarine which sank the hospital ship? Did it commit a warcrime?

3. What constitutes refusal to surrender?

Consider the case of a fleet of troop-carriers that is sunk by air-attack. The survivors abandon the sinking ships and sail away in lifeboats and rafts. They are then attacked from the air, and the attack is pursued until all the survivors have been killed.

Have the survivors refused to surrender? What constitutes an attempt to surrender by men in lifeboats attacked by aircraft?

What do the crews of the aircraft have to do to to ascertain whether the men in the lifeboats have refused to surrender? If they open their cockpit windows at several hundred feet, shout out "Do you surrender?", and if they hear no answer, is that a refusal of surrender.

The above case is not hypothetical; it is precisely what happened at the Battle of the Bismarck Sea. The air attacks were filmed from the attacking aircraft, and newsreels were made, which can be viewed at the Australian War memorial here in Canberr. Nowhere in those newsreels is any mention made of the Japanese survivors being asked to surrender and refusing; the commentary simply says that some of the Nips tried to escape from the sinking ships but our brave airmane managed to finish them all off.

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Post by David Thompson » 22 Jul 2003 11:18

Xanthro -- You said: "Japan was represented at the convention, but Japan never ratified the treaty, hence they are not a signatory."

That was certainly the position that Japanese took during WWII. The Japanese plenipotentiary signed the convention, and nothing else happened. Since the delegate represented the person of the Emperor I'm not sure what else, if anything, was needed.

The secondary sources on the internet have not been of much help -- they do not agree on whether Japan even participated in the convention. I'm going to do a little more research to see how the Japanese government handled other treaties during the same time period. There's a pretty interesting and detailed discussion of the subject at:

The Japanese army and its prisoners: relevant documents and bureaucratic institutions
http://ajrp.awm.gov.au:8000/ajrp/AJRP2. ... enDocument

Michael -- It's after 3 am here, and I'm getting drowsy, but in response to your second question: "What was the legal position of the US submarine which sank the hospital ship? Did it commit a warcrime?" I think the ship was just a cargo vessel. If it was marked as a hospital ship I believe the sinking of the Suez Maru would have been a war crime pursuant to the Hague Convention of 1907 For the Adaptation to Maritime War of the Principles of the Geneva Convention (Hague X), on-line at:

http://www.yale.edu/lawweb/avalon/lawofwar/hague10.htm

I'm too tired for competent reading so I'll be back on this and your other questions after a good morning's rest.

Xanthro
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Post by Xanthro » 22 Jul 2003 13:39

David Thompson wrote:
Xanthro -- You said: "Japan was represented at the convention, but Japan never ratified the treaty, hence they are not a signatory."
That was certainly the position that Japanese took during WWII. The Japanese plenipotentiary signed the convention, and nothing else happened. Since the delegate represented the person of the Emperor I'm not sure what else, if anything, was needed.
It would have to be ratified by an unamanious vote of the Cabinent. All Japanese legislation, treaties and policies followed this rule. Only an unamanious showing no dissent could be brought before the august presence of the Emperor.

The Emperor himself had no political power. This is a hard concept for many to understand, how someone can be considered God, but have absolutely no political power. Mere politics and government was considered beneath the position of a deity.

While all legislation and policy was made in the name of the Emperor, the Emperor had no real say in its formation.

Xanthro

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Post by Witch-King of Angmar » 22 Jul 2003 17:51

Xanthro wrote:Once the men are in the water and cannot be legitimately picked up, they are no longer POWs, they are soldiers. While it's cruel to shot them, it doesn't violate the Geneva laws at the time.

As I said, on a number of occassions, the US strafed Japanese sailors who were in the water. The US forces even got medals for it.

I'm not talking about a sub that refused to surrender, I'm talking about people in the water just like the example in this thread.
Yeah, right.
On the afternoon of March 13, 1944, U-852 was patrolling about 300 miles east of the Freetown-Ascension Island line, approximately 500 miles north of Ascension Island and 700 miles south of Freetown. The U-boat was cruising on the surface when at 500 p.m. a lookout spotted a freighter ahead and off the starboard bow. The ship in the distance turned out to be the SS Peleus, a Greek-registered freighter of 6,659 BRT built by William Gray & Company in 1928. Under charter to the British War Transportation Ministry, Peleus had left Freetown in ballast five days earlier bound for South America and the River Plate. She carried a crew of thirty-five.

Eck ordered U-852 to full speed and laid a course to put the U-boat ahead of the target. The chase lasted two and a half hours, and it was dark by the time U-852 was in position to attack. At 1940 Eck made a night surface attack, firing two torpedoes from the bow tubes. The torpedoes slammed into the freighter just moments apart, the first exploding in the number two hold, the second just aft in the number three hold. From U-852's bridge, Kapitänleutnant Eck observed that the "detonation was very impressive." The doomed Peleus went down like a rock.

It is impossible to know how many of the thirty-five man crew got off the ship before she was swallowed by the sea, but there could not have been many. Chief Officer Antonios Liossis was knocked unconscious and blown off the bridge into the water. Rocco Said, an off-watch greaser, was on deck when the torpedoes struck. To Said, who had been at sea since his youth, "it was clear the ship would sink immediately." He and other crewmen who were on deck at the time determined to take their chances in the ocean.6 The freighter went down so quickly that almost none of the survivors had time to don life vests or life belts. Those who jumped overboard clung to hatch covers, timbers, and any other piece of wreckage that floated. Rafts that had been stowed on deck bobbed clear as the freighter went down, and some of the survivors made for them. Chief Officer Liossis and a seaman, Dimitrios Konstantinides, swam toward a raft. While they were still in the water U-852 moved slowly among the flotsam. After the U-boat passed, Liossis and Konstantinides climbed aboard the raft.

The only officers on U-852's bridge at this time were Kapitänleutnant Eck and his first watch officer, Oberleutnant z.S. Gerhard Colditz. The other occupants consisted of two enlisted lookouts. As the U-boat cruised slowly among the debris, Eck and his crewmen on the bridge could hear whistles and shouting. They also saw lights on some of the rafts. At about this time the ship's doctor, Oberstabsarzt Walter Weispfennig, came on the bridge. His sole purpose for going topside was to see what was transpiring, and he stood behind a periscope about fifteen feet away from Eck and Colditz.

Whenever possible, U-boat captains were supposed to question survivors about the ship, its cargo and destination. Eck called down and ordered his chief engineer, Kapitänleutnant (Ing.) Hans Lenz, on deck. Because Lenz spoke English, he sent the engineer forward to the bow to question a survivor. Lenz was joined in the trek forward by the second watch officer, Lieutnant z.S. August Hoffmann.

Hoffmann had come off watch at 400 p.m., an hour before the Peleus was sighted. He had been below deck during the attack and was not scheduled to go back on watch until midnight. Hoffmann also spoke some English, but he had not been specifically ordered to accompany Lenz to the bow. Apparently he, like Weispfennig, was there to see what was going on.

As the two officers reached the bow, Eck maneuvered U-852 alongside one of the life rafts. The raft he picked was occupied by the Peleus' third officer, Agis Kephalas, a greaser named Stavros Sogias, a Russian seaman named Pierre Neuman, and a Chinese fireman whose name no one recalled. Kapitänleutnant (Ing.) Lenz beckoned the third officer to come aboard the U-boat. Lenz and Hoffmann questioned the man about the ship. They learned that she was in ballast and that she was sailing from Freetown and bound for the River Plate. Third officer Kephalas also told them that another, slower ship was following them to the same destination. With the questioning concluded, Hoffmann told the Greek officer that he and the other survivors would be picked up the next day by the British. He helped the man back onto his raft and both officers started back toward the conning tower to report what they had learned. After the Greek sailor returned to his raft, Eck ordered U-852 to proceed slowly while he listened to Lenz's report. When Lenz told him about the Greek officer's account of the approaching, slow moving freighter, Eck discounted the claim as "too much of a good thing."

At this point there were five officers on the bridge Eck, his first officer (Colditz), the second officer (Hoffmann), the chief engineer (Lenz), and the doctor (Weispfennig). The doctor was still standing away from the others and did not participate in the conversation that followed. Apparently Hoffmann also remained far enough away from the group that he could not clearly understand what the other three men were discussing.

The conversion had taken an ominous turn. Eck told Colditz and Lenz that he was concerned about the amount and size of the wreckage. He believed that the morning air patrols out of Freetown or Ascension Island would spot the wreckage and recognize it as the result of a U-boat attack. The discovery would trigger an immediate search for the U-boat, and given the number of U- boats lost during the previous six months, Eck felt his boat did not stand a chance if discovered by enemy aircraft.

His choices, however, were limited. He could leave the area and run on the surface at maximum speed until dawn, but by the time the sun rose, U-852 would still be less than 200 miles from the scene of the sinking-well within range of aircraft. In the time it took U-852 to travel about a half mile from the scene of the sinking, Eck decided that in order to protect his boat and his crew, he had to destroy all traces of the Peleus.

Eck ordered two machine guns brought up on the bridge. While the weapons were being retrieved from below, both Colditz and Lenz protested the captain's decision. Eck listened to both officers but dismissed their objections. According to Eck, it was necessary to destroy all traces of the sinking, and he justified the destruction of the wreckage as an operational necessity to protect his boat from discovery and destruction.

As the U-boat turned back toward the rafts Lenz went below, leaving four officers on the bridge Eck, Colditz, Hoffmann and Weispfennig. Both machine guns were brought up and mounted on the railing on the after part of the conning tower-one to port and one to starboard. Exactly what was said and happened next is not entirely clear. Apparently Eck made it known to the officers on the bridge that he wanted the rafts sunk. He made no mention of shooting at anyone in the water, nor did he ever give an order to kill any of the survivors. It was accepted, however, that by sinking the rafts the survivors would lose any hope for survival. Eck had chosen to use machine guns because he believed the rafts were mounted on hollow floats, and thus piercing the floats with bullets would cause the the rafts would sink. In fact, the rafts' floats were filled with buoyant material.

It was now about 800 p.m., and the night was very dark and moonless. The rafts appeared as dark shapes on the water, their lights having been extinguished by the occupants when the U-boat first approached. Eck apparently turned to Weispfennig, who was standing near the starboard machine gun, and ordered him to fire at the wreckage. The doctor complied with the order, directing his fire at a raft he estimated was about 200 yards away.

Weispfennig's gun jammed after he had fired just a few bursts, and he could not make it operate again. Hoffmann, still off watch, went to Weispfennig and cleared the jam. The second officer then took over on the gun and opened fire on the raft that had been Weispfennig's target. The doctor took no further part in the attempt to destroy the rafts, although he remained on the bridge. Despite the machine gun fire directed at it, the raft refused to sink. Eck ordered the signal light turned on in order to examine the craft to determine why it was still afloat. The examination, conducted at considerable distance and in poor light, proved inconclusive. The U-boat continued to move slowly through the wreckage, firing intermittently at the rafts. Apparently all the firing was being done from the starboard side, and at this point only Hoffmann was shooting. Weispfennig did not shoot again, and neither Eck nor Colditz ever fired.

Nor was the firing continuous. In fact there were long periods when there was no firing at all. In part the pauses were the result of poor visibility due to the dark, moonless night. The other reason for the interruptions was the ineffectiveness of the machine gun fire on the rafts. They were not sinking, despite the rounds being pumped into them. Eck's goal of eliminating surface wreckage was not being achieved.

At about this time Hoffmann suggested using the 37mm gun, reasoning that its explosive rounds would destroy the rafts. Some consideration was also given to using the 105mm deck gun, but Eck rejected both suggestions because he did not think the guns could be brought to bear at such close range. He did, however, tell Hoffmann to try the twin 20mm anti-aircraft guns.

The attempt to sink the rafts with the 20mm guns was also a failure, prompting someone to suggest placing demolition charges aboard the rafts. Eck rejected that idea because he did not want any of his crew to leave the U-boat. Instead, he ordered hand grenades brought up, and maneuvered U-852 within thirty yards of a raft.

The only person who can be identified as having thrown any grenades is Hoffmann. How many he threw at the raft, or if he threw grenades at more than one raft, is not known. It appears that two or three grenades were thrown, and that perhaps two of the rafts were targets. The grenades also proved to be useless in sinking the rafts. Throughout the grisly operation it was not Eck's intent to kill any of the survivors. That they might be hit by gunfire, and would certainly die if their rafts were destroyed, was obvious to him. But he assumed that whoever was on the rafts had jumped into the water when the shooting started. His assumption was incorrect.

Instead of diving into the sea, Chief Officer Antonios Liossis threw himself down on the floorboards of the raft and squirmed head first under a bench when the machine gun opened fire. Behind him he heard Dimitrios Kostantinidis cry out in pain as he was hit several times. The seaman collapsed on the floor of the raft and died. Later, when the U-boat made another pass and grenades were thrown, Liossis was wounded in the back and shoulder by shrapnel.

Aboard another raft were the third officer, Agis Kephalas, and two seamen. Both of the latter were killed and Kephalas was badly injured in the arm. It is unclear whether these men were killed or wounded by grenade fragments or machine gun fire. Despite his wound, Kephalas managed to roll off the raft and swim toward the boat occupied by Liossis.

Seaman Rocco Said dived over the side when the firing started and was in the water near his raft when the shooting was turned in his direction. Around him other swimmers "threw their hands up" as they were machine-gunned, and sank below the surface.

Below decks in U-852 the crew was unaware of exactly what was happening topside. Some of the men heard the firing and everyone was aware that the boat was maneuvering slowly. Obviously they were still in the area of the sinking and many wondered why. Some of the men knew that two machine guns had been taken up to the bridge and that hand grenades had also been requested. They could only guess at what it all meant.

Chief Engineer Lenz, who had vacated the bridge and had spent the last four hours writing the report of his conversation with the Greek officer, supervised the reloading of the forward torpedo tubes and passed the time checking on the boat's trim. He had to see that the boat was, as he later put it, "ready to submerge at any time." Lenz heard the intermittent firing and the explosions of the hand grenades. He was the only man below deck during that time who knew for a certainty what the sounds meant.

By this time it was midnight and the watch was changed. Colditz was relieved by Hoffmann and went below. The enlisted lookouts were also relieved, one of the reliefs being Matrosenobergefreiter Wolfgang Schwender. As soon as Schwender took his place on the bridge, Eck ordered him to man the port side machine gun and fire at the large pieces of wreckage. Schwender complied with the order and opened fire on a raft that was about thirty-five yards away.

After firing one burst Schwender's gun jammed. He was clearing the jam when Lenz came up on the bridge. Schwender had just cleared the jam and was preparing to fire again when Lenz shoved him roughly aside, took control of the gun, and opened fire on the raft. Schwender assumed his duties as a lookout and did not fire again.

How long Kapitänleutnant (Ing.) Lenz manned the port side machine gun is not clear. But it appears that he fired only at one raft and then quit firing. The question that bears asking is why was he firing at all? The captain had given the assignment to Schwender, not Lenz. The answer to that question is hard for many people to comprehend. According to Lenz, he took the gun from Schwender because he thought the Greek officer he had questioned might be on that raft. He didn't want him "hit and killed by bullets which had been fired by a soldier who in my view was bad." To Lenz it was a matter of honor, consideration and duty to insure that if anyone was killed, he was killed by a bullet fired by an honorable man.

By 100 a.m. on March 14, 1944, Eck had tried to sink the rafts with machine guns, 20mm anti-aircraft guns, hand grenades and ramming. His attempts to destroy all traces of the sinking had failed utterly. Worse, U-852 had spent nearly five hours on the scene and dawn was only six hours away. It was long past time to go. Realizing the precariousness of his situation, Eck took U-852 out of the area at maximum speed shortly thereafter, leaving behind four survivors on two rafts. Three lived to be rescued thirty-five days later. While U-852 was steaming through the night, news of the attack on the wreckage spread through the boat and seriously affected morale. "I was under the impression that the mood on board was rather a depressing one," Eck later said. "I myself was in the same mood." In view of the crew's sullen attitude, Eck felt obligated to explain why he had made the decision to destroy the wreckage.

He addressed his men over the boat's loudspeaker system, telling them that he had made the decision "with a heavy heart," and that he regretted that some of the survivors may have been killed during the attempt to sink the rafts. He acknowledged that, in any event, without the rafts the survivors would surely die. He warned his crew about being "influenced too much by sympathy," citing that "we must also think of our wives and children who at home die as victims of air attack."

The explanation failed to ameliorate the crew's sinking morale or dispel their distaste for what had transpired. In addition, Eck had failed to explain to them the circumstances that caused him to see the destruction of the rafts as an operational necessity.
Source:
http://uboat.net/articles/index.html?article=18

The aftermath, after skipping the judgment details:
The seven members of the court left the room to deliberate. Just fifty-eight minutes later they returned with their decisions Heinz Eck, August Hoffmann and Dr. Walter Weispfennig were condemned to death by firing squad; Chief Engineer Hans Lenz was sentenced to imprisonment for life, Wolfgang Schwender to fifteen years.
Guess not everyone gets medals, right? :P

~The Witch King of Angmar

David Thompson
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Post by David Thompson » 22 Jul 2003 17:53

For our readers, here is an excerpt from an essay by Professor Utsumi Aiko (the author gives his name, and those of other persons, in in the Japanese conventional form with last name first) of Keisen University, for the Australia-Japan Research Project. The essay is titled "The Japanese army and its prisoners: relevant documents and bureaucratic institutions" and it may be found on-line at:

http://ajrp.awm.gov.au:8000/ajrp/AJRP2. ... enDocument

"4. Prisoners of war and international treaties

International law relating to the treatment of prisoners of war includes the Hague Convention on the Rules of Land Warfare, ratified by Japan in 1911, and the 1929 Geneva Treaty on the Treatment of Prisoners of War. While Japan was a signatory to the Geneva it had never ratified it due to internal opposition from the Army, Navy and Privy Council.

Following the outbreak of WWII, the US government issued a statement on 27 December 1940 expressing the hope that the Hague and Geneva treaties would be "mutually applied." It was followed by similar statements from the governments of England, Canada, Australia and New Zealand. In response, the Japanese Foreign Ministry compiled a "Note of Reply," after which it gathered representatives of the Army Ministry's Military Affairs Bureau, the Police Department and the Overseas Development Ministry for a meeting held on 21 January 1942. The Foreign Ministry's recommendation at this meeting was that "Every effort should be made to correspondingly apply the provisions of the treaties regarding any prisoners of enemy countries that fall under the authority of Japan, including issues such as food, clothing, and the treatment of the prisoners in accordance with internationally recognised standards of human rights."

After ascertaining that there were no differences of opinion on the POW issue, the Vice-Minister for the Army, KIMURA Heitarô, replied to the Vice-Minister for Foreign Affairs, NISHI Haruhiko: "While we cannot proclaim our open support for the (Geneva) Convention, we have no objections to measures taken with regard to the treatment of prisoners of war."[12]

What did the Japanese government really mean by the phrase "correspondingly apply?" As we can see, its vagueness was echoed in the Vice-Minister's response. While there were minor differences of opinion and interpretation regarding the POW issue within the army and the government the following official statement was finally relayed to the allied governments through the Swiss Embassy.

1. "As a signatory to the 1929 International Red Cross Convention, the Japanese Empire rigorously adheres to the principles established under this Convention.

2. "Although the Japanese Empire has not ratified the 1929 International Convention on the Treatment of Prisoners of War, and is therefore not considered to be bound by this Convention in any way, it is Japan's intention to correspondingly apply the principles of this Convention to any American prisoners who fall under the jurisdiction of Japan."[13]

A similar reply was also sent to the other allied countries, affirming Japan's intention to "correspondingly apply" the principles of a convention it had not ratified. In the original draft document, the words "intention to correspondingly apply" are underlined, with the phrase "apply in mutatis mutandis" (with necessary modifications) noted in the margin. From other documents it becomes clear that the army took this to mean, in the words of the Minister for the Army, General TÔJÔ, that "necessary revisions of the principles of international conventions could be made in accordance with the demands of the immediate situation and in accordance with Japan's domestic law."[14]

According to the head of the Treaty Bureau in the Foreign Ministry, MATSUMOTO Shun'ichi, the decision to restrict Japan's application of the Geneva Convention to only "corresponding" application of its principles was thus explicable: the Japanese government foresaw the possibility of enormous difficulties in applying the principles of the Convention to the letter. This did not, he argued, invalidate Japan's intention "to apply the principles of the Geneva Convention wherever possible, unless in situations where there were insurmountable difficulties involved."

I suggest that Japan was using the expression "correspondingly apply," to notify enemy countries of its intention to observe the spirit of the Geneva Convention. Indeed, it could not credibly have been any more than an expression of intent - given that Japan had neither deposited ratification documents with Switzerland, nor taken any other procedures to become a member of the convention community. Since no arrangements for ratifying the convention were made domestically, no legal steps to accommodate the convention were taken which might have included amendments to domestic laws which contravened the conditions of the convention - such as the Japanese Army and Navy's criminal law codes.

The agreement among Japan's governing elite was that they would apply the Geneva Convention with necessary modifications in order to make it conform to Japan's domestic laws and regulations, and to suit the actual circumstances of Japan's armed forces during the war.

Elsewhere, however, Japan's expression of its intention to "apply the Convention in mutatis mutandis" was interpreted quite differently. The International Prosecution Bureau took this to mean that Japan would be bound by the conditions imposed by the Geneva Convention. It is clear that Japan and the Allies interpreted the Geneva Convention's application to Japan quite differently; indeed, differing interpretations of the mutatis mutandis phrase remained an issue between Japan and its enemies until the very end, as the Allies accused Japan of gradually changing its approach to this matter.

In one response issued in 1942 both Foreign Minister TÔGO and the Treaty Bureau Chief MATSUMOTO said that in the absence of "any crucial obstacles," the Geneva Convention would take precedence over domestic laws and regulations that came into conflict with its provisions. In February 1943, however, the Foreign Ministry issued a statement that POWs could and would engage in "non-hazardous labour." This drew swift criticism from Switzerland, which pointed out that Article 32 of the Geneva Convention expressly prohibits the use of POWs as forced labour. In response, the Ministry stated in March 1943 that Japan was "not bound by the 1929 Convention concerning the treatment of prisoners." When Japan was subsequently requested to submit detailed information to Switzerland on articles of the Convention which it might find difficult to apply under existing domestic law, the Foreign Minister SHIGEMITSU answered that Japan's intention to apply the convention mutatis mutandis should be taken to mean that Japan "would mutually apply the Geneva Convention when and to the extent which it considered appropriate." These shifting interpretations of mutatis mutandis were interpreted by the Allies as evidence of Japanese duplicity."

These are the three footnotes to the excerpt:

[12] "Memorandum: Responses to the inquiries of Allied Powers regarding the treatment of POW," and Items from the Greater East Asia War: treaty regulations and general problems concerning the treatment of prisoners of war of enemy states. Diplomatic Records Office, Japan Ministry of Foreign Affairs (in Japanese).

[13] From Items from the Greater East Asia War: general problems and relations between enemy states concerning the treatment of prisoners of war. Diplomatic Records Office, Japan Ministry of Foreign Affairs (Japanese).

[14] Oral testimony of TÔJO Hideki at the Tokyo War Crimes Trials. From the Tokyo War Crimes Trials Research Association (eds), Tôjô Hideki sensei kyôjutsusho, p. 133, Tokyo: Yôyôsha, 1948 (Japanese).

David Thompson
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Location: USA

Post by David Thompson » 22 Jul 2003 18:04

The newspaper coverage of the "Peleus" trial can be found at:

Other War Crimes -- The Peleus Trial
http://www.thirdreichforum.com/viewtopic.php?t=21491

Discussions of related topics appear at:

USS Wahoo, "Mush" Morton and War Crimes
http://www.thirdreichforum.com/viewtopic.php?t=27221

Other War Crimes -- U-Boats
http://www.thirdreichforum.com/viewtopic.php?t=14471

Why double standards?
http://www.thirdreichforum.com/viewtopic.php?t=3286

David Thompson
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Post by David Thompson » 24 Jul 2003 07:17

Michael -- You asked:

"1. What would have been the legal position if the POWs who had abandoned the sinking ship had simply been left in the water, and had died of drowning, exposure, or conversion to shark-food? Was the Japanese ship under any obligation to rescue them? Would leaving them to die be a war-crime?"

I think this is a war crime. The obligation of the captor is established by the 1907 Hague Convention [IV] Article IV ("Prisoners of war . . . must be humanely treated.") and Article VII ("The Government into whose hands prisoners of war have fallen is charged with their maintenance. In the absence of a special agreement between the belligerents, prisoners of war shall be treated as regards board, lodging, and clothing on the same footing as the troops of the Government who captured them.")

The 1929 Geneva Convention has similar provisions in Article 2 ("Prisoners of war are in the power of the hostile Power, but not of the individuals or corps who have captured them. They must at all times be humanely treated and protected, particularly against acts of violence, insults and public curiosity. Measures of reprisal against them are prohibited.") and Article 4 ("The Power detaining prisoners of war is bound to provide for their maintenance.") In addition, Article 7 provides: "Prisoners of war shall be evacuated within the shortest possible period after their capture, to spots located in a region far enough from the zone of combat for them to be out of danger. Only prisoners who, because of wounds or sickness would run greater risks by being evacuated than by remaining where they are may be temporarily kept in a dangerous zone. Prisoners shall not be needlessly exposed to danger while awaiting their evacuation from the combat zone."

You also asked:

"2. What was the legal position of the US submarine which sank the hospital ship? Did it commit a warcrime?"

As I pointed out earlier, I don't believe the Suez Maru was a hospital ship, but was just an unmarked enemy freighter or cargo ship, so my answer is no, that was not a war crime.

You then asked:

"3. What constitutes refusal to surrender?"

I don't think that "refusal to surrender" has a formal meaning, or is a prerequisite to lawful combat. An armed and uniformed group which wishes to surrender has the burden of manifesting that wish in some way. There's no obligation on the other combatant to call for surrender. If one side tries to surrender and the other side refuses to give quarter and kills them while or after surrendering, however, that is a war crime.

GHWR
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Moderator's Moderation re Suez Maru string

Post by GHWR » 22 Jul 2004 18:26

As a v new member, who has been perusing past strings, I wanted to comment upon the moderator, David Thompson's contribution.

I thought his contribution to be an exemple of the highest order in making valid points without emotion but with authority. It is reassuring to see member's interests etc being safeguarded in such a manner. Keep up the good work.

Incidentally there are some very interesting comments and analyses on Eck's situation in the Royal United Service Institution (RUSI) Journal of Feb 1951, pages 71-73 "Obedience to Lawful Commands" (no author cited) - following debate in the British House of Lords (Upper House of Parliament), and with follow up articles in the May 1951 edition, p258-266 by Admiral of the Fleet The Earl of Cork and Orrery (who initiated the two debates in the House of Lords); and the second with a title "This question of superior orders" by Captain Russel Grenfell, p263-266.

They exhibit comendable balance as to the rights and wrongs of arguably other war crimes (depending upon one's perspective), e.g. "terror bombing of Germany" and also the situation of subordinates who carry out unlawful orders.

One intersting aspect of the Eck case is that one of his two war criminals who faced the penalty was the U-Boat's medical officer, Dr. Walter Weispfennig, acting on Eck's direct order (or could it have been partly national socialist zeal (?)- led him to flout his Hippocratic oath as well as to ignore his non-combatant status/exemption from using weapons for offensive purposes, as defined by German naval regulations. The paradox concerning Dr. Walter Weispfennig's actions remain unresolved, albeit his defence counsel used the concept of superior offcier's orders being of overriding force.

For fuller details about the Peleus/Eck affair see the item on uboat.net http://uboat.net/articles/index.html?article=18&page=6 , which has a lengthy review/extract from a book Heinz-Wilhelm Eck, Siegerjustiz and the Peleus Affair by Dwight R. Messimer which I see is available through Greenhill Books in the UK and Stackpole Books in the US; and for a more contemporaneous account, Trial of Heinz Eck, August Hoffmann, Walter Weisspfennig, Hans Richard Lenz and Wolfgang Schwender (The Peleus Trial) by - Cameron, John (editor) 1948, W. Hodge, London 247 pages, photos, 1 map


Graham

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