Table of contents:
P.1. Evidence that the court was not independent and impartial.
P.1.1. Evidence that the court or tribunal was bound by superior directives or orders.
P.1.2. Evidence that judges were convinced of guilt of accused prior to the opening of the trial.
P.1.3. Evidence that trial was used as an instrument of reprisal.
P.2. Evidence that the accused was not promptly informed of the offences he/she was charged with.
P.3. Evidence that the rights and means of defence were denied.
P.3.1. Evidence that the right to be assisted by a qualified lawyer chosen freely was denied.
P.3.2. Evidence that the right to be assisted by a competent interpreter was denied.
P.3.3. Evidence that the right to present evidence was denied.
P.3.4. Evidence that the right to call witnesses was denied.
P.4. Evidence that the right of the accused to know the evidence against him or her was denied.
P.5. Evidence of convictions not supported by evidence.
P.5.1. Evidence that evidence was manifestly inadequate to sustain the verdict and sentence.
P.5.2. Evidence of conviction despite lack of evidence.
P.5.4. Evidence of falsified evidence.
P.6. Evidence of violation of the principle of individual criminal responsibility.
P.7. Evidence of violation of the principle of nullum crimen sine lege.
P.8. Evidence of violation of the principle of non bis in idem.
P.9. Evidence that the accused was not informed of his/her rights to appeal.
P.10. Evidence that the proceedings were completed in an extremely short time span.
Element:
P.1. Evidence that the court was not independent and impartial.
A. Legal source/authority:
Article 84, Geneva Convention III:
"A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105."
P.1.1. Evidence that the court or tribunal was bound by superior directives or orders.
A. Legal source/authority and evidence:
Article 84, Geneva Convention III:
"A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105"
Trial of Hans Paul Helmuth Latza and Others, by the Eidsivating Lagmannsrett (Court of Appeal) and the Supreme Court of Norway, UNWCC, Law Reports of Trials of War Criminals, vol. XIV, at pp. 67-68:
"After reviewing the facts and evidence the Lagmannsrett turned to the legal issues involved.
The Lagmannsrett held that although there were no express provisions of international law in force as regards court procedure to be followed by an occupation power, there were certain minimum demands which were indispensable, namely:
(a) that the tribunal or court in question shall be an impartial one and not bound by directives or orders from above.
[ ]
(b) that those accused before the tribunal or court in question shall be manifestly made acquainted with the concrete points of the charges brought against them. It could, however not be regarded as essential that a written charge sheet be served upon the accused before the trial.
[ ]
(c) that the accused before the tribunal or court in question must be given opportunity to explain themselves and state their case freely and to counter each and very point of the charge.
[ ]
(d) that the evidence submitted to the tribunal or court in question must be manifestly adequate to sustain the verdict and sentence.
[ ]
(e) that the accused before the tribunal or court in question shall be given opportunity to offer and submit their counter-evidence."
B. Evidentiary comment:
The Lagmannsrett found all three accused not guilty and acquitted them. The Prosecution appealed to the Supreme Court. It was held that the violation of a single requirement for fair trial as listed above does not necessarily lead to an unfair trial, the court having to weigh in each instance whether the outcome amounted to denial of a fair trial. (Trial of Hans Paul Helmuth Latza and Others, by the Eidsivating Lagmannsrett (Court of Appeal) and the Supreme Court of Norway, UNWCC, Law Reports of Trials of War Criminals, vol. XIV, at p. 85)
P.1.2. Evidence that judges were convinced of guilt of accused prior to the opening of the trial.
Trial of Captain Eitaro Shinohara and Two Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Vol. V, p. 32, at pp. 32, 36:
"1. THE CHARGES
The accused, Captains Eitaro Shinohara, Toyoji Nemeto and Takeyasu Shoji were charged with "violation of the Laws and Usages of War in that they in May, 1945, when members of a Military Court convened to try two natives of Kanbanguru failed to ensure that such natives were afforded a fair and proper trial."
"The Judge Advocate then proceeded to set out the six fundamental principles which were essential to a fair trial, in the same words as those used by him in the trial of Shigeru Ohashi and Six Others.1
It will be noted that the victims of the offence proved in the case just reported were not furnished with the services of a Defence Counsel, or, apparently, any other aid in presenting their defence, and that Shinohara, the President of the Court, confessed to having been convinced of the guilt of the captives even before the opening of the trial. Further, the charge sheet was interpreted in Pidgin English and not in a language native to the accused;2 the same seems to have been true of the interpretation of the rest of the proceedings. On the other hand, some documentary evidence was produced (whether Prosecution witnesses were also called is uncertain), the accused confessed to having done wrong, and there was evidence of both having been interrogated for some time by the Court before sentence of death was passed. The three judges who imposed this sentence were held guilty of failing to insure a fair and proper trial, but the Australian Military Court which tried them decided that imprisonment for five years would be a sufficient penalty, and the confirming authority refused confirmation of the finding and sentences. This case provides an interesting illustration of the limits beyond which liability arising out of the denial of a fair trial will not extend."
"1. See pp. 30-1.
2. Sergeant Arai was asked by the Australian Court to repeat in pidgin the charge - against the two viIlagers. The result could not be said to convey with any accuracy the offence charged : " No. 1 Capt. belong Kumbumburu Name belong him Popaku. Boss boy belong Kambamburu. Name belong him Maran. You two fello you make him trouble along Japan soldier. Dis peela trouble now make court."
Trial Of Sergeant-Major Shigeru Ohashi And Six Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 25, at pp. 26, 30-31 :
"In short, General Immamuras evidence was that the Japanese government had directed a summary trial in the field for war criminals under certain operational conditions, and that those conditions existed at Vunarima in September, 1944."
"4. DENIAL OF A FAIR TRIAL
The Judge Advocate further advised the Court that the accused would be entitled to an acquittal if it had been proved that "the deceased had a fair and reasonable trial, that such trial was of the kind directed by Japan and that the accused were authorized to take part in such trial and execution." It was "for the belligerent to decide the form of trial subject to certain fundamental principles of justice."
The Judge Advocate continued:
"I consider these principles to be:
(a) Consideration by a tribunal comprised of one or more men who will endeavour to judge the accused fairly upon the evidence using their own common knowledge of ordinary affairs and if they are soldiers their military knowledge, honestly endeavouring to discard any preconceived belief in the guilt of accused or any prejudice against him.
(b) The accused should know the exact nature of the charge preferred against him.
(c) The accused should know what is alleged against him by way of evidence.
(d) He should have full opportunity to give his own version of the case and produce evidence to support it.
(e) The court should satisfy itself that the accused is guilty before awarding punishment. It would be sufficient if the court believed it to be more likely than not that the accused was guilty.
(f) The punishment should not be one which outrages the sentiments of humanity.
Unless provision is made for observance of all of these principles I do not consider any other form of proceedings which a belligerent might direct would in law really amount to a trial."
B. Evidentiary comment:
It should be noted that the above principles were put forward to the Court by the Judge Advocate in the Trial Of Sergeant-Major Shigeru Ohashi And Six Others. The case commentator in Alstotter suggests that the advice of the Judge Advocate is less authoritative than the actual findings of courts, but that, nevertheless, such advice carries great weight (as in British and Canadian trials). (Trial of Josef Alstotter and Others, UNWCC, Law Reports of Trials of War Criminals, vol. VI, p. 1,at p.104)
P.1.3. Evidence that trial was used as an instrument of reprisal.
A. Legal source/ authority and evidence:
Trial of Hans Paul Helmuth Latza and Others, by the Eidsivating Lagmannsrett (Court of Appeal) and the Supreme Court of Norway, UNWCC, Law Reports of Trials of War Criminals, vol. XIV, at p. 59:
"[ ] The Lagmannsrett also stressed the fact that the accused Latza had taken aprt in the discussions at Skaugum, where he must have learned that the whole trial was nothing but a camouflaged act of reprisal with only one possible outcome to those to be tried- the death sentence. Furthermore, during the conference with the German Prosecutor Weiner at Victoria Terrasse, he must have clearly understood that the evidence which Weiner proposed to submit to the Standgericht was insufficient. In the opinion of the Lagmannsrett, the accused Latza must have been fully aware that the intention of the trial was to take reprisals and clothe them in a cloak of legality. He had thus, unlawfully, wilfully, and intentionally caused Dr. Saethres and Advokat Vislies death."
B. Evidentiary comment:
It should be noted that on retrial by the Lagmannsrett, the accused Latza was acquitted because, inter alia, the Prosecution did not succeed in proving that he had had interacted with the German Prosecutor Weiner before the trial. (Trial of Hans Paul Helmuth Latza and Others, by the Eidsivating Lagmannsrett (Court of Appeal) and the Supreme Court of Norway, UNWCC, Law Reports of Trials of War Criminals, vol. XIV, at pp. 67-70) The decision of the Lagmannsrett was upheld by the Supreme Court.(ibid, p. 83)
P.2. Evidence that the accused was not promptly informed of the offences he/she was charged with.
A. Legal source/ authority and evidence:
Article 104, Geneva Convention III:
"In any case in which the Detaining Power has decided to institute judicial proceedings against a prisoner of war, it shall notify the Protecting Power as soon as possible and at least three weeks before the opening of the trial. This period of three weeks shall run as from the day on which such notification reaches the Protecting Power at the address previously indicated by the latter to the Detaining Power.
The said notification shall contain the following information:
(1) surname and first names of the prisoner of war, his rank, his army, regimental, personal or serial number, his date of birth, and his profession or trade, if any;
(2) place of internment or confinement;
(3) specification of the charge or charges on which the prisoner of war is to be arraigned, giving the legal provisions applicable;
(4) designation of the court which will try the case, likewise the date and place fixed for the opening of the trial.
The same communication shall be made by the Detaining Power to the prisoners' representative.
If no evidence is submitted, at the opening of a trial, that the notification referred to above was received by the Protecting Power, by the prisoner of war and by the prisoners' representative concerned, at least three weeks before the opening of the trial, then the latter cannot take place and must be adjourned."
Article 71(2) Geneva Convention IV:
"No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial.
Accused persons who are prosecuted by the Occupying Power shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them, and shall be brought to trial as rapidly as possible. The Protecting Power shall be informed of all proceedings instituted by the Occupying Power against protected persons in respect of charges involving the death penalty or imprisonment for two years or more; it shall be enabled, at any time, to obtain information regarding the state of such proceedings. Furthermore, the Protecting Power shall be entitled, on request, to be furnished with all particulars of these and of any other proceedings instituted by the Occupying Power against protected persons.
The notification to the Protecting Power, as provided for in the second paragraph above, shall be sent immediately, and shall in any case reach the Protecting Power three weeks before the date of the first hearing. Unless, at the opening of the trial, evidence is submitted that the provisions of this Article are fully complied with, the trial shall not proceed. The notification shall include the following particulars:
(a) description of the accused;
(b) place of residence or detention;
(c) specification of the charge or charges (with mention of the penal provisions under which it is brought);
(d) designation of the court which will hear the case;
(e) place and date of the first hearing."
Trial of Lieutenant General Shigeru Sawada and Three Others, UNWCC, Law Reports of Trials of War Criminals, Vol. V, p. 1 at pp. 12-13:
"It is impossible to draw up with certainty a complete catalogue of the aspects of the trial which were regarded by the Commission as contributing to its criminal character, but the findings of the Commission set out above show that the following facts were regarded by it as incriminating:
(i) the airmen were tried "on false and fraudulent charges" and "upon false and fraudulent charges". [ ]
(ii) the airmen were not afforded "the right to counsel";
(iii) the airmen were not given the right to "the interpretation of the proceedings into English";
(iv) the airmen were not allowed "an opportunity to defend themselves."
Furthermore the following facts of greater or lesser importance which were admitted in evidence may have been taken into account by the Commission in deciding that the victims were not given "a fair hearing or trial";
(i) the fliers were not told that they were being tried, or told of any charges against them;
(ii) the airmen were not shown the documents which were used in evidence against them.
Trial of Hans Paul Helmuth Latza and Others, by the Eidsivating Lagmannsrett (Court of Appeal) and the Supreme Court of Norway, UNWCC, Law Reports of Trials of War Criminals, vol. XIV, at pp. 67-68:
"After reviewing the facts and evidence the Lagmannsrett turned to the legal issues involved.
The Lagmannsrett held that although there were no express provisions of international law in force as regards court procedure to be followed by an occupation power, there were certain minimum demands which were indispensable, namely:
(a) that the tribunal or court in question shall be an impartial one and not bound by directives or orders from above.
[ ]
(b) that those accused before the tribunal or court in question shall be manifestly made acquainted with the concrete points of the charges brought against them. It could, however not be regarded as essential that a written charge sheet be served upon the accused before the trial.
[ ]
(c) that the accused before the tribunal or court in question must be given opportunity to explain themselves and state their case freely and to counter each and very point of the charge.
[ ]
(d) that the evidence submitted to the tribunal or court in question must be manifestly adequate to sustain the verdict and sentence.
[ ]
(e) that the accused before the tribunal or court in question shall be given opportunity to offer and submit their counter-evidence."
B. Evidentiary comment:
With respect to the source above, on appeal to the Supreme Court, it was held that the violation of a single requirement for fair trial as listed above does not necessarily lead to an unfair trial, the court having to weigh in each instance whether the outcome amounted to denial of a fair trial. (Knut Dormann, "Elements of War Crimes under the Rome Statute", Cambridge University Press, 2002, p. 104) (footnotes omitted)
Trial of Josef Alstotter and Others (The Justice Trial), (before the United States Military Tribunal, Nuremberg) UNWCC, Law Reports of Trials of War Criminals, vol. VI, p. 1, at pp. 96-97, 103:
"5. THE CRIMINAL ASPECTS OF THE DENIAL OF A FAIR TRIAL
[ ]
In dealing with the Nucht und Nebel plan and the guilt particularly of Oeschey and Rothaug the Tribunal stressed the various ways in which the victims of that plan and of those accused had been denied the right to a fair trial before punishment. The Tribunal did not lay down a catalogue of minimum requirements of a fair trial, as did the Judge Advocate acting with the courts which conducted the three Australian trials reported upon in Volume V, and all that can be safely conjectured here is that the United States Military Tribunal regarded certain facts as evidence that such "trials" as were held under the Nacht und Nebel scheme and the proceedings with which Oeschey, Rothaug and Lautz were connected did not approximate to fair trials sufficiently to constitute a defence to a charge brought against those accused and others of taking part in certain governmentally organized plans having a criminal outcome.
[ ]
The following passage from the Judgment of the Tribunal indicates certain features of the Nacht und Nebel plan which it regarded as constituting evidence of its illegal character:
"It remains to arrive at some tentative conclusions on the attitude of the Tribunal which tried Alstotter and others regarding the nature of those aspects of purported trial proceedings which may be used as proof of the offence of denial of a fair trial or as evidence in rebutting the defence that execution or other injury was done in pursuance of a judicial sentence.6
These aspects, which are in addition to those set out in the last section7 may be summarized as follows:
(i) the right of accused persons to know the charge against them,8 and this a reasonable time before the opening of trial, was denied9;
(ii) the right of accused to the full aid of counsel of their own choice was denied, and sometimes no counsel at all was allowed to defend the accused10
(iii) the right to be tried by an unprejudiced judge was denied to accused persons11;
(iv) the right of accused to give or introduce evidence was wholly or partly denied12;
(v) the right of accused to know the evidence against them was denied13.
(vi) the general right to a hearing adequate for a full investigation of a case was denied14.
In addition it is at least possible that the Tribunal regarded the persistent denial of clemency as a further incriminating factor1.
The footnote cross-references by which the points enumerated above have been related to the similar catalogue contained in Volume V of this series reveal a striking uniformity in the attitude of different courts to the characteristics of a fair trial under international law, or conversely to those characteristics which would brand purported judicial proceedings as a denial of a fair trial.2 It can fairly be said that a body of rules is emerging or has emerged in this branch of international law. The analyses contained in these pages and in Volume V of the characteristics just mentioned have, it should be noted, been based on one or more of the following:
(i) The actual findings of United States Military Commissions in trials reported in Volume V;
(ii) The advice of the Judge Advocate in the Australian trials reported in the same volume. This source is less authoritative than the last; nevertheless while the Judge Advocates advice need not have been taken by the court, such advice (as in British and Canadian trials) carries great weight;
(iii) The evidence which was at any rate admitted by the courts conducting trials reported on in Volume V, and which may have been taken into account by the courts in deciding on their verdicts and sentences; and
(iv) Passages from the Judgment in the Justice Trial.
Due to the construction of this last Judgment it is not always possible to say with certainty what the Tribunal regarded as criminal and what merely as evidence of knowledge, intent or motive. Again, the other three sources set out above are not all of equal authoritativeness. Nevertheless it must be recognized that even the first, namely the findings of courts upon certain charges, are not of more than persuasive authority, and it is submitted that the analysis that has been attempted here and in Volume V of the nature of the denial of a fair trial, even though based on such differing categories of authority, is not without interest in the building up of a jurisprudence of war crimes law."
"1. see p. 84 regarding this characteristic of counts Two and Three
[ ]
6.The following account should be compared with the summary contained on pages 73-77 of Volume V, which as already stated attempt to summarise the results of the trials reported upon in that volume on the same issue.
7. See p. 100
8. see p. 97; and compare p. 119.
9. compare item (i) on p. 75 of Volume V.
10. see pp. 97 and 101. Compare item (ii) on p. 74 of Volume V and the footnote thereto. 11.see pp. 101-2 and 119. compare the last complete paragraph on p. 75 of Volume V. 12. see p. 101. Compare item (iii) on page 75 of Volume V
13. see p. 101. Compare item (iii) on page 75 of Volume V
14. see p. 101. compare item (iii) on page 75 of Volume V.)
1. see p. 102
2. the denial of one of the rights enumerated above would not amount to a denial of a fair trial however, and the courts have had to decide in each instance whether a sufficient number of the rights which they have regarded as forming part of the general right to a fair trial were sufficiently violated to warrant the making of one or other of the legal deductions discussed on pages 102-3"
Trial Of Sergeant-Major Shigeru Ohashi And Six Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 25, at pp. 26, 30-31 :
"In short, General Immamuras evidence was that the Japanese government had directed a summary trial in the field for war criminals under certain operational conditions, and that those conditions existed at Vunarima in September, 1944."
"4. DENIAL OF A FAIR TRIAL
The Judge Advocate further advised the Court that the accused would be entitled to an acquittal if it had been proved that "the deceased had a fair and reasonable trial, that such trial was of the kind directed by Japan and that the accused were authorized to take part in such trial and execution." It was "for the belligerent to decide the form of trial subject to certain fundamental principles of justice."
The Judge Advocate continued:
"I consider these principles to be:
(a) Consideration by a tribunal comprised of one or more men who will endeavour to judge the accused fairly upon the evidence using their own common knowledge of ordinary affairs and if they are soldiers their military knowledge, honestly endeavouring to discard any preconceived belief in the guilt of accused or any prejudice against him.
(b) The accused should know the exact nature of the charge preferred against him.
(c) The accused should know what is alleged against him by way of evidence.
(d) He should have full opportunity to give his own version of the case and produce evidence to support it.
(e) The court should satisfy itself that the accused is guilty before awarding punishment. It would be sufficient if the court believed it to be more likely than not that the accused was guilty.
(f) The punishment should not be one which outrages the sentiments of humanity.
Unless provision is made for observance of all of these principles I do not consider any other form of proceedings which a belligerent might direct would in law really amount to a trial."
B. Evidentiary comment:
With respect to the sources above, it should be noted that the above principles were put forward to the Court by the Judge Advocate in the Trial of Sergeant-Major Shigeru Ohashi and Six Others. The case commentator in Alstotter suggests that the advice of the Judge Advocate is less authoritative than the actual findings of courts, but that, nevertheless such advice carries great weight (as in British and Canadian trials). (Trial of Josef Alstotter and Others, UNWCC, Law Reports of Trials of War Criminals, vol. VI, p. 1, at p.104)
P.3. Evidence that the rights and means of defence were denied.
A. Legal source/authority and evidence:
Article 105 Geneva Convention III:
"The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial."
Article 74 Geneva Convention IV:
"Representatives of the Protecting Power shall have the right to attend the trial of any protected person, unless the hearing has, as an exceptional measure, to be held in camera in the interests of the security of the Occupying Power, which shall then notify the Protecting Power. A notification in respect of the date and place of trial shall be sent to the Protecting Power.
Any judgment involving a sentence of death, or imprisonment for two years or more, shall be communicated, with the relevant grounds, as rapidly as possible to the Protecting Power. The notification shall contain a reference to the notification made under Article 71, and, in the case of sentences of imprisonment, the name of the place where the sentence is to be served. A record of judgments other than those referred to above shall be kept by the court and shall be open to inspection by representatives of the Protecting Power. Any period allowed for appeal in the case of sentences involving the death penalty, or imprisonment of two years or more, shall not run until notification of judgment has been received by the Protecting Power."
P.3.1. Evidence that the right to be assisted by a qualified lawyer chosen freely was denied.
A. Legal source/ authority and evidence:
Article 99 Geneva Convention III:
"No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.
No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.
No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel."
Article 72 Geneva Convention IV:
"Accused persons shall have the right to present evidence necessary to their defence and may, in particular, call witnesses. They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence.
Failing a choice by the accused, the Protecting Power may provide him with an advocate or counsel. When an accused person has to meet a serious charge and the Protecting Power is not functioning, the Occupying Power, subject to the consent of the accused, shall provide an advocate or counsel.
Accused persons shall, unless they freely waive such assistance, be aided by an interpreter, both during preliminary investigation and during the hearing in court. They shall have the right at any time to object to the interpreter and to ask for his replacement.
Trial of Lieutenant General Shigeru Sawada and Three Others, UNWCC, Law Reports of Trials of War Criminals, Vol. V, p. 1 at pp. 12-13:
"It is impossible to draw up with certainty a complete catalogue of the aspects of the trial which were regarded by the Commission as contributing to its criminal character, but the findings of the Commission set out above show that the following facts were regarded by it as incriminating:
(i) the airmen were tried "on false and fraudulent charges" and "upon false and fraudulent charges". [ ]
(ii) the airmen were not afforded "the right to counsel";
(iii) the airmen were not given the right to "the interpretation of the proceedings into English";
(iv) the airmen were not allowed "an opportunity to defend themselves."
Furthermore the following facts of greater or lesser importance which were admitted in evidence may have been taken into account by the Commission in deciding that the victims were not given "a fair hearing or trial";
(i) the fliers were not told that they were being tried, or told of any charges against them;
(ii) the airmen were not shown the documents which were used in evidence against them.
Trial of Josef Alstotter and Others (The Justice Trial), (before the United States Military Tribunal, Nuremberg) UNWCC, Law Reports of Trials of War Criminals, vol. VI, p. 1, at pp. 96-97, 103:
"5. THE CRIMINAL ASPECTS OF THE DENIAL OF A FAIR TRIAL
[ ]
In dealing with the Nucht und Nebel plan and the guilt particularly of Oeschey and Rothaug the Tribunal stressed the various ways in which the victims of that plan and of those accused had been denied the right to a fair trial before punishment. The Tribunal did not lay down a catalogue of minimum requirements of a fair trial, as did the Judge Advocate acting with the courts which conducted the three Australian trials reported upon in Volume V, and all that can be safely conjectured here is that the United States Military Tribunal regarded certain facts as evidence that such "trials" as were held under the Nacht und Nebel scheme and the proceedings with which Oeschey, Rothaug and Lautz were connected did not approximate to fair trials sufficiently to constitute a defence to a charge brought against those accused and others of taking part in certain governmentally organized plans having a criminal outcome.
[ ]
The following passage from the Judgment of the Tribunal indicates certain features of the Nacht und Nebel plan which it regarded as constituting evidence of its illegal character:
"It remains to arrive at some tentative conclusions on the attitude of the Tribunal which tried Alstotter and others regarding the nature of those aspects of purported trial proceedings which may be used as proof of the offence of denial of a fair trial or as evidence in rebutting the defence that execution or other injury was done in pursuance of a judicial sentence.6
These aspects, which are in addition to those set out in the last section7 may be summarized as follows:
(i) the right of accused persons to know the charge against them,8 and this a reasonable time before the opening of trial, was denied9;
(ii) the right of accused to the full aid of counsel of their own choice was denied, and sometimes no counsel at all was allowed to defend the accused10
(iii) the right to be tried by an unprejudiced judge was denied to accused persons11;
(iv) the right of accused to give or introduce evidence was wholly or partly denied12;
(v) the right of accused to know the evidence against them was denied13.
(vi) the general right to a hearing adequate for a full investigation of a case was denied14.
In addition it is at least possible that the Tribunal regarded the persistent denial of clemency as a further incriminating factor1.
The footnote cross-references by which the points enumerated above have been related to the similar catalogue contained in Volume V of this series reveal a striking uniformity in the attitude of different courts to the characteristics of a fair trial under international law, or conversely to those characteristics which would brand purported judicial proceedings as a denial of a fair trial.2 It can fairly be said that a body of rules is emerging or has emerged in this branch of international law. The analyses contained in these pages and in Volume V of the characteristics just mentioned have, it should be noted, been based on one or more of the following:
(i) The actual findings of United States Military Commissions in trials reported in Volume V;
(ii) The advice of the Judge Advocate in the Australian trials reported in the same volume. This source is less authoritative than the last; nevertheless while the Judge Advocates advice need not have been taken by the court, such advice (as in British and Canadian trials) carries great weight;
(iii) The evidence which was at any rate admitted by the courts conducting trials reported on in Volume V, and which may have been taken into account by the courts in deciding on their verdicts and sentences; and
(iv) Passages from the Judgment in the Justice Trial.
Due to the construction of this last Judgment it is not always possible to say with certainty what the Tribunal regarded as criminal and what merely as evidence of knowledge, intent or motive. Again, the other three sources set out above are not all of equal authoritativeness. Nevertheless it must be recognized that even the first, namely the findings of courts upon certain charges, are not of more than persuasive authority, and it is submitted that the analysis that has been attempted here and in Volume V of the nature of the denial of a fair trial, even though based on such differing categories of authority, is not without interest in the building up of a jurisprudence of war crimes law."
"1. see p. 84 regarding this characteristic of counts Two and Three
[ ]
6.The following account should be compared with the summary contained on pages 73-77 of Volume V, which as already stated attempt to summarise the results of the trials reported upon in that volume on the same issue.
7. See p. 100
8. see p. 97; and compare p. 119.
9. compare item (i) on p. 75 of Volume V.
10. see pp. 97 and 101. Compare item (ii) on p. 74 of Volume V and the footnote thereto. 11.see pp. 101-2 and 119. compare the last complete paragraph on p. 75 of Volume V. 12. see p. 101. Compare item (iii) on page 75 of Volume V
13. see p. 101. Compare item (iii) on page 75 of Volume V
14. see p. 101. compare item (iii) on page 75 of Volume V.)
1. see p. 102
2. the denial of one of the rights enumerated above would not amount to a denial of a fair trial however, and the courts have had to decide in each instance whether a sufficient number of the rights which they have regarded as forming part of the general right to a fair trial were sufficiently violated to warrant the making of one or other of the legal deductions discussed on pages 102-3"
Trial of Lieutenant General Harukei Isayama And Seven Others, (United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 60, at pp. 60, 65:
1. THE CHARGES.
It was charged that the accused, Lieutenant-General Harukei Isayama, Colonel Seiichi Furukawa, Lieutenant-Colonel Naritaka Sugiura, Captain Yoshio Nakano, Captain Tadao Ito, Captain Masaharu Matsui, First-Lieutenant Jitsuo Date and First-Lieutenant Ken Fujikawa did each " at Taihoku, Formosa, wilfully, unlawfully and wrongfully, commit cruel, inhuman and brutal atrocities and other offences against certain American Prisoners of War, by permitting and participating in an illegal and false trial and unlawful killing of said prisoners of war, in violation of the laws and customs of war." The charges asserted that the offences of the first two accused were committed "on or between 14th April, 1945 and 19th June, 1945," and those of the others "on or between 21st May, 1945 and 19th June, 1945"; and that each of the accused except the first two mentioned above committed the offences charged "as a member of a Japanese Military Tribunal."
"The following facts arising from the evidence admitted by the Commission are worth recapitulating since they may have been regarded by the latter as proving, or helping to prove, that the accused permitted and participated in " an illegal and false trial and unlawful killing " of the victims :
(i) the evidence brought against the airmen was falsified ;
(ii) little or no evidence connecting the victims with the alleged illegal bombing was produced apart from the falsified statements ;
(iii) the prisoners were denied Defence Counsel ;
(iv) the prisoners were denied the opportunity to obtain evidence or witnesses on their own behalf ;
(v) the greater part of the proceedings were not interpreted to them ;
(vi) all the trials were completed in one day."
Trial Of General Tanaka Hisakasu And Five Others,(United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, p. 66, at. pp. 66, 70-71:
"1. THE CHARGES
The Charge against General Tanaka Hisakasu was that, as Governor General of Hong Kong and Commanding General of the Japanese 23rd Imperial Expeditionary Army in China, he " did, at Canton, China and/or Hong Kong knowingly, wilfully, unlawfully and wrongfully commit cruel, inhuman and brutal atrocities and other offences against " a named United States Major, " by authorizing, permitting, participating in and approving of the illegal, unfair, false and null trial and the unlawful killing " of the Major, in violation of the laws and customs of war.
"An examination of the evidence admitted by the Commission throws light upon what the latter may have regarded as constituting the offence committed by the members of the Japanese Military Tribunal. In particular the following facts may have been taken as illustrating the "illegal, unfair, false and null" character of the proceedings taken against the Major:
(i) no Defence Counsel was provided for the accused, who was in no position to secure one himself,
(ii) the Major had no opportunity to prepare his defence or secure evidence on his own behalf,
(iii) no witnesses appeared at the trial apart from the Major, and his evidence in which he denied intentionally attacking a civilian boat was ignored by the Tribunal, since, despite that evidence, they found him guilty of an offence against the " Enemy Airmen Act,"1
(iv) the entire proceedings lasted not more than two hours."
"1. See p. 67"
Trial of Captain Eitaro Shinohara and Two Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Vol. V, p. 32, at pp. 32, 36:
"1. THE CHARGES
The accused, Captains Eitaro Shinohara, Toyoji Nemeto and Takeyasu Shoji were charged with "violation of the Laws and Usages of War in that they in May, 1945, when members of a Military Court convened to try two natives of Kanbanguru failed to ensure that such natives were afforded a fair and proper trial."
"The Judge Advocate then proceeded to set out the six fundamental principles which were essential to a fair trial, in the same words as those used by him in the trial of Shigeru Ohashi and Six Others.1
It will be noted that the victims of the offence proved in the case just reported were not furnished with the services of a Defence Counsel, or, apparently, any other aid in presenting their defence, and that Shinohara, the President of the Court, confessed to having been convinced of the guilt of the captives even before the opening of the trial. Further, the charge sheet was interpreted in Pidgin English and not in a language native to the accused;2 the same seems to have been true of the interpretation of the rest of the proceedings. On the other hand, some documentary evidence was produced (whether Prosecution witnesses were also called is uncertain), the accused confessed to having done wrong, and there was evidence of both having been interrogated for some time by the Court before sentence of death was passed. The three judges who imposed this sentence were held guilty of failing to insure a fair and proper trial, but the Australian Military Court which tried them decided that imprisonment for five years would be a sufficient penalty, and the confirming authority refused confirmation of the finding and sentences. This case provides an interesting illustration of the limits beyond which liability arising out of the denial of a fair trial will not extend."
"1. See pp. 30-1.
2. Sergeant Arai was asked by the Australian Court to repeat in pidgin the charge - against the two viIlagers. The result could not be said to convey with any accuracy the offence charged : " No. 1 Capt. belong Kumbumburu Name belong him Popaku. Boss boy belong Kambamburu. Name belong him Maran. You two fello you make him trouble along Japan soldier. Dis peela trouble now make court."
P.3.2. Evidence that the right to be assisted by a competent interpreter was denied.
A. Legal source/ authority and evidence:
Article 105 Geneva Convention III:
"The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial."
Article 72 Geneva Convention IV:
"Accused persons shall have the right to present evidence necessary to their defence and may, in particular, call witnesses. They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence.
Failing a choice by the accused, the Protecting Power may provide him with an advocate or counsel. When an accused person has to meet a serious charge and the Protecting Power is not functioning, the Occupying Power, subject to the consent of the accused, shall provide an advocate or counsel.
Accused persons shall, unless they freely waive such assistance, be aided by an interpreter, both during preliminary investigation and during the hearing in court. They shall have the right at any time to object to the interpreter and to ask for his replacement."
Trial of Lieutenant General Shigeru Sawada and Three Others, UNWCC, Law Reports of Trials of War Criminals, Vol. V, p. 1 at pp. 12-13:
"It is impossible to draw up with certainty a complete catalogue of the aspects of the trial which were regarded by the Commission as contributing to its criminal character, but the findings of the Commission set out above show that the following facts were regarded by it as incriminating:
(i) the airmen were tried "on false and fraudulent charges" and "upon false and fraudulent charges". [ ]
(ii) the airmen were not afforded "the right to counsel";
(iii) the airmen were not given the right to "the interpretation of the proceedings into English";
(iv) the airmen were not allowed "an opportunity to defend themselves."
Furthermore the following facts of greater or lesser importance which were admitted in evidence may have been taken into account by the Commission in deciding that the victims were not given "a fair hearing or trial";
(i) the fliers were not told that they were being tried, or told of any charges against them;
(ii) the airmen were not shown the documents which were used in evidence against them.
Trial of Lieutenant General Harukei Isayama And Seven Others, (United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 60, at pp. 60, 65:
1. THE CHARGES.
It was charged that the accused, Lieutenant-General Harukei Isayama, Colonel Seiichi Furukawa, Lieutenant-Colonel Naritaka Sugiura, Captain Yoshio Nakano, Captain Tadao Ito, Captain Masaharu Matsui, First-Lieutenant Jitsuo Date and First-Lieutenant Ken Fujikawa did each " at Taihoku, Formosa, wilfully, unlawfully and wrongfully, commit cruel, inhuman and brutal atrocities and other offences against certain American Prisoners of War, by permitting and participating in an illegal and false trial and unlawful killing of said prisoners of war, in violation of the laws and customs of war." The charges asserted that the offences of the first two accused were committed "on or between 14th April, 1945 and 19th June, 1945," and those of the others "on or between 21st May, 1945 and 19th June, 1945"; and that each of the accused except the first two mentioned above committed the offences charged "as a member of a Japanese Military Tribunal."
"The following facts arising from the evidence admitted by the Commission are worth recapitulating since they may have been regarded by the latter as proving, or helping to prove, that the accused permitted and participated in " an illegal and false trial and unlawful killing " of the victims :
(i) the evidence brought against the airmen was falsified ;
(ii) little or no evidence connecting the victims with the alleged illegal bombing was produced apart from the falsified statements ;
(iii) the prisoners were denied Defence Counsel ;
(iv) the prisoners were denied the opportunity to obtain evidence or witnesses on their own behalf ;
(v) the greater part of the proceedings were not interpreted to them ;
(vi) all the trials were completed in one day."
Trial of Captain Eitaro Shinohara and Two Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Vol. V, p. 32, at pp. 32, 36:
"1. THE CHARGES
The accused, Captains Eitaro Shinohara, Toyoji Nemeto and Takeyasu Shoji were charged with "violation of the Laws and Usages of War in that they in May, 1945, when members of a Military Court convened to try two natives of Kanbanguru failed to ensure that such natives were afforded a fair and proper trial."
"The Judge Advocate then proceeded to set out the six fundamental principles which were essential to a fair trial, in the same words as those used by him in the trial of Shigeru Ohashi and Six Others.1
It will be noted that the victims of the offence proved in the case just reported were not furnished with the services of a Defence Counsel, or, apparently, any other aid in presenting their defence, and that Shinohara, the President of the Court, confessed to having been convinced of the guilt of the captives even before the opening of the trial. Further, the charge sheet was interpreted in Pidgin English and not in a language native to the accused;2 the same seems to have been true of the interpretation of the rest of the proceedings. On the other hand, some documentary evidence was produced (whether Prosecution witnesses were also called is uncertain), the accused confessed to having done wrong, and there was evidence of both having been interrogated for some time by the Court before sentence of death was passed. The three judges who imposed this sentence were held guilty of failing to insure a fair and proper trial, but the Australian Military Court which tried them decided that imprisonment for five years would be a sufficient penalty, and the confirming authority refused confirmation of the finding and sentences. This case provides an interesting illustration of the limits beyond which liability arising out of the denial of a fair trial will not extend."
"1. See pp. 30-1.
2. Sergeant Arai was asked by the Australian Court to repeat in pidgin the charge - against the two viIlagers. The result could not be said to convey with any accuracy the offence charged : " No. 1 Capt. belong Kumbumburu Name belong him Popaku. Boss boy belong Kambamburu. Name belong him Maran. You two fello you make him trouble along Japan soldier. Dis peela trouble now make court."
P.3.3. Evidence that the right to present evidence was denied.
A. Legal source/authority and evidence:
Article 72 Geneva Convention IV:
"Accused persons shall have the right to present evidence necessary to their defence and may, in particular, call witnesses. They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence."
Trial of Hans Paul Helmuth Latza and Others, by the Eidsivating Lagmannsrett (Court of Appeal) and the Supreme Court of Norway, UNWCC, Law Reports of Trials of War Criminals, vol. XIV, at pp. 67-68:
"After reviewing the facts and evidence the Lagmannsrett turned to the legal issues involved.
The Lagmannsrett held that although there were no express provisions of international law in force as regards court procedure to be followed by an occupation power, there were certain minimum demands which were indispensable, namely:
(a) that the tribunal or court in question shall be an impartial one and not bound by directives or orders from above.
[ ]
(b) that those accused before the tribunal or court in question shall be manifestly made acquainted with the concrete points of the charges brought against them. It could, however not be regarded as essential that a written charge sheet be served upon the accused before the trial.
[ ]
(c) that the accused before the tribunal or court in question must be given opportunity to explain themselves and state their case freely and to counter each and very point of the charge.
[ ]
(d) that the evidence submitted to the tribunal or court in question must be manifestly adequate to sustain the verdict and sentence.
[ ]
(e) that the accused before the tribunal or court in question shall be given opportunity to offer and submit their counter-evidence."
B. Evidentiary comment:
With respect to the source above, on appeal to the Supreme Court, it was held that the violation of a single requirement for fair trial as listed above does not necessarily lead to an unfair trial, the court having to weigh in each instance whether the outcome amounted to denial of a fair trial. (Knut Dormann, "Elements of War Crimes under the Rome Statute", Cambridge University Press, 2002, p. 104) (footnotes omitted)
Trial of Josef Alstotter and Others (The Justice Trial), (before the United States Military Tribunal, Nuremberg) UNWCC, Law Reports of Trials of War Criminals, vol. VI, p. 1, at pp. 96-97, 103:
"5. THE CRIMINAL ASPECTS OF THE DENIAL OF A FAIR TRIAL
[ ]
In dealing with the Nucht und Nebel plan and the guilt particularly of Oeschey and Rothaug the Tribunal stressed the various ways in which the victims of that plan and of those accused had been denied the right to a fair trial before punishment. The Tribunal did not lay down a catalogue of minimum requirements of a fair trial, as did the Judge Advocate acting with the courts which conducted the three Australian trials reported upon in Volume V, and all that can be safely conjectured here is that the United States Military Tribunal regarded certain facts as evidence that such "trials" as were held under the Nacht und Nebel scheme and the proceedings with which Oeschey, Rothaug and Lautz were connected did not approximate to fair trials sufficiently to constitute a defence to a charge brought against those accused and others of taking part in certain governmentally organized plans having a criminal outcome.
[ ]
The following passage from the Judgment of the Tribunal indicates certain features of the Nacht und Nebel plan which it regarded as constituting evidence of its illegal character:
"It remains to arrive at some tentative conclusions on the attitude of the Tribunal which tried Alstotter and others regarding the nature of those aspects of purported trial proceedings which may be used as proof of the offence of denial of a fair trial or as evidence in rebutting the defence that execution or other injury was done in pursuance of a judicial sentence.6
These aspects, which are in addition to those set out in the last section7 may be summarized as follows:
(i) the right of accused persons to know the charge against them,8 and this a reasonable time before the opening of trial, was denied9;
(ii) the right of accused to the full aid of counsel of their own choice was denied, and sometimes no counsel at all was allowed to defend the accused10
(iii) the right to be tried by an unprejudiced judge was denied to accused persons11;
(iv) the right of accused to give or introduce evidence was wholly or partly denied12;
(v) the right of accused to know the evidence against them was denied13.
(vi) the general right to a hearing adequate for a full investigation of a case was denied14.
In addition it is at least possible that the Tribunal regarded the persistent denial of clemency as a further incriminating factor1.
The footnote cross-references by which the points enumerated above have been related to the similar catalogue contained in Volume V of this series reveal a striking uniformity in the attitude of different courts to the characteristics of a fair trial under international law, or conversely to those characteristics which would brand purported judicial proceedings as a denial of a fair trial.2 It can fairly be said that a body of rules is emerging or has emerged in this branch of international law. The analyses contained in these pages and in Volume V of the characteristics just mentioned have, it should be noted, been based on one or more of the following:
(i) The actual findings of United States Military Commissions in trials reported in Volume V;
(ii) The advice of the Judge Advocate in the Australian trials reported in the same volume. This source is less authoritative than the last; nevertheless while the Judge Advocates advice need not have been taken by the court, such advice (as in British and Canadian trials) carries great weight;
(iii) The evidence which was at any rate admitted by the courts conducting trials reported on in Volume V, and which may have been taken into account by the courts in deciding on their verdicts and sentences; and
(iv) Passages from the Judgment in the Justice Trial.
Due to the construction of this last Judgment it is not always possible to say with certainty what the Tribunal regarded as criminal and what merely as evidence of knowledge, intent or motive. Again, the other three sources set out above are not all of equal authoritativeness. Nevertheless it must be recognized that even the first, namely the findings of courts upon certain charges, are not of more than persuasive authority, and it is submitted that the analysis that has been attempted here and in Volume V of the nature of the denial of a fair trial, even though based on such differing categories of authority, is not without interest in the building up of a jurisprudence of war crimes law."
"1. see p. 84 regarding this characteristic of counts Two and Three
[ ]
6.The following account should be compared with the summary contained on pages 73-77 of Volume V, which as already stated attempt to summarise the results of the trials reported upon in that volume on the same issue.
7. See p. 100
8. see p. 97; and compare p. 119.
9. compare item (i) on p. 75 of Volume V.
10. see pp. 97 and 101. Compare item (ii) on p. 74 of Volume V and the footnote thereto. 11.see pp. 101-2 and 119. compare the last complete paragraph on p. 75 of Volume V. 12. see p. 101. Compare item (iii) on page 75 of Volume V
13. see p. 101. Compare item (iii) on page 75 of Volume V
14. see p. 101. compare item (iii) on page 75 of Volume V.)
1. see p. 102
2. the denial of one of the rights enumerated above would not amount to a denial of a fair trial however, and the courts have had to decide in each instance whether a sufficient number of the rights which they have regarded as forming part of the general right to a fair trial were sufficiently violated to warrant the making of one or other of the legal deductions discussed on pages 102-3"
Trial of Lieutenant General Harukei Isayama And Seven Others, (United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 60, at pp. 60, 65:
"1. THE CHARGES.
It was charged that the accused, Lieutenant-General Harukei Isayama, Colonel Seiichi Furukawa, Lieutenant-Colonel Naritaka Sugiura, Captain Yoshio Nakano, Captain Tadao Ito, Captain Masaharu Matsui, First-Lieutenant Jitsuo Date and First-Lieutenant Ken Fujikawa did each " at Taihoku, Formosa, wilfully, unlawfully and wrongfully, commit cruel, inhuman and brutal atrocities and other offences against certain American Prisoners of War, by permitting and participating in an illegal and false trial and unlawful killing of said prisoners of war, in violation of the laws and customs of war." The charges asserted that the offences of the first two accused were committed "on or between 14th April, 1945 and 19th June, 1945," and those of the others "on or between 21st May, 1945 and 19th June, 1945"; and that each of the accused except the first two mentioned above committed the offences charged "as a member of a Japanese Military Tribunal."
"The following facts arising from the evidence admitted by the Commission are worth recapitulating since they may have been regarded by the latter as proving, or helping to prove, that the accused permitted and participated in " an illegal and false trial and unlawful killing " of the victims :
(i) the evidence brought against the airmen was falsified ;
(ii) little or no evidence connecting the victims with the alleged illegal bombing was produced apart from the falsified statements ;
(iii) the prisoners were denied Defence Counsel ;
(iv) the prisoners were denied the opportunity to obtain evidence or witnesses on their own behalf ;
(v) the greater part of the proceedings were not interpreted to them ;
(vi) all the trials were completed in one day."
Trial Of General Tanaka Hisakasu And Five Others,(United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, p. 66, at. pp. 66, 70-71:
"1. THE CHARGES
The Charge against General Tanaka Hisakasu was that, as Governor General of Hong Kong and Commanding General of the Japanese 23rd Imperial Expeditionary Army in China, he " did, at Canton, China and/or Hong Kong knowingly, wilfully, unlawfully and wrongfully commit cruel, inhuman and brutal atrocities and other offences against " a named United States Major, " by authorizing, permitting, participating in and approving of the illegal, unfair, false and null trial and the unlawful killing " of the Major, in violation of the laws and customs of war.
"An examination of the evidence admitted by the Commission throws light upon what the latter may have regarded as constituting the offence committed by the members of the Japanese Military Tribunal. In particular the following facts may have been taken as illustrating the "illegal, unfair, false and null" character of the proceedings taken against the Major:
(i) no Defence Counsel was provided for the accused, who was in no position to secure one himself,
(ii) the Major had no opportunity to prepare his defence or secure evidence on his own behalf,
(iii) no witnesses appeared at the trial apart from the Major, and his evidence in which he denied intentionally attacking a civilian boat was ignored by the Tribunal, since, despite that evidence, they found him guilty of an offence against the " Enemy Airmen Act,"1
(iv) the entire proceedings lasted not more than two hours."
"1. See p. 67"
P.3.4. Evidence that the right to call witnesses was denied.
A. Legal source/authority and evidence:
Article 72 Geneva Convention IV:
"Accused persons shall have the right to present evidence necessary to their defence and may, in particular, call witnesses. They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence.
Failing a choice by the accused, the Protecting Power may provide him with an advocate or counsel. When an accused person has to meet a serious charge and the Protecting Power is not functioning, the Occupying Power, subject to the consent of the accused, shall provide an advocate or counsel.
Accused persons shall, unless they freely waive such assistance, be aided by an interpreter, both during preliminary investigation and during the hearing in court. They shall have the right at any time to object to the interpreter and to ask for his replacement."
Trial of Lieutenant General Harukei Isayama And Seven Others, (United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 60, at pp. 60, 65:
1. THE CHARGES .
It was charged that the accused, Lieutenant-General Harukei Isayama, Colonel Seiichi Furukawa, Lieutenant-Colonel Naritaka Sugiura, Captain Yoshio Nakano, Captain Tadao Ito, Captain Masaharu Matsui, First-Lieutenant Jitsuo Date and First-Lieutenant Ken Fujikawa did each " at Taihoku, Formosa, wilfully, unlawfully and wrongfully, commit cruel, inhuman and brutal atrocities and other offences against certain American Prisoners of War, by permitting and participating in an illegal and false trial and unlawful killing of said prisoners of war, in violation of the laws and customs of war." The charges asserted that the offences of the first two accused were committed "on or between 14th April, 1945 and 19th June, 1945," and those of the others "on or between 21st May, 1945 and 19th June, 1945"; and that each of the accused except the first two mentioned above committed the offences charged "as a member of a Japanese Military Tribunal."
"The following facts arising from the evidence admitted by the Commission are worth recapitulating since they may have been regarded by the latter as proving, or helping to prove, that the accused permitted and participated in " an illegal and false trial and unlawful killing " of the victims :
(i) the evidence brought against the airmen was falsified ;
(ii) little or no evidence connecting the victims with the alleged illegal bombing was produced apart from the falsified statements ;
(iii) the prisoners were denied Defence Counsel ;
(iv) the prisoners were denied the opportunity to obtain evidence or witnesses on their own behalf ;
(v) the greater part of the proceedings were not interpreted to them ;
(vi) all the trials were completed in one day."
A. Legal source/ authority and evidence:
Article 99 Geneva Convention III:
No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.
No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.
No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.
Trial of Lieutenant General Shigeru Sawada and Three Others, UNWCC, Law Reports of Trials of War Criminals, Vol. V, p. 1 at pp. 12-13:
"It is impossible to draw up with certainty a complete catalogue of the aspects of the trial which were regarded by the Commission as contributing to its criminal character, but the findings of the Commission set out above show that the following facts were regarded by it as incriminating:
(i) the airmen were tried "on false and fraudulent charges" and "upon false and fraudulent charges". [ ]
(ii) the airmen were not afforded "the right to counsel";
(iii) the airmen were not given the right to "the interpretation of the proceedings into English";
(iv) the airmen were not allowed "an opportunity to defend themselves."
Furthermore the following facts of greater or lesser importance which were admitted in evidence may have been taken into account by the Commission in deciding that the victims were not given "a fair hearing or trial";
(i) the fliers were not told that they were being tried, or told of any charges against them;
(ii) the airmen were not shown the documents which were used in evidence against them.
Trial of Hans Paul Helmuth Latza and Others, by the Eidsivating Lagmannsrett (Court of Appeal) and the Supreme Court of Norway, UNWCC, Law Reports of Trials of War Criminals, vol. XIV, at pp. 67-68:
"After reviewing the facts and evidence the Lagmannsrett turned to the legal issues involved.
The Lagmannsrett held that although there were no express provisions of international law in force as regards court procedure to be followed by an occupation power, there were certain minimum demands which were indispensable, namely:
(a) that the tribunal or court in question shall be an impartial one and not bound by directives or orders from above.
[ ]
(b) that those accused before the tribunal or court in question shall be manifestly made acquainted with the concrete points of the charges brought against them. It could, however not be regarded as essential that a written charge sheet be served upon the accused before the trial.
[ ]
(c) that the accused before the tribunal or court in question must be given opportunity to explain themselves and state their case freely and to counter each and very point of the charge.
[ ]
(d) that the evidence submitted to the tribunal or court in question must be manifestly adequate to sustain the verdict and sentence.
[ ]
(e) that the accused before the tribunal or court in question shall be given opportunity to offer and submit their counter-evidence."
B. Evidentiary comment:
On appeal to the Supreme Court, it was held that the violation of a single requirement for fair trial as listed above does not necessarily lead to an unfair trial, the court having to weigh in each instance whether the outcome amounted to denial of a fair trial. (Knut Dormann, "Elements of War Crimes under the Rome Statute", Cambridge University Press, 2002, p. 104) (footnotes omitted)
Trial Of Sergeant-Major Shigeru Ohashi And Six Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 25, at pp. 26, 30-31 :
"In short, General Immamuras evidence was that the Japanese government had directed a summary trial in the field for war criminals under certain operational conditions, and that those conditions existed at Vunarima in September, 1944."
"4. DENIAL OF A FAIR TRIAL
The Judge Advocate further advised the Court that the accused would be entitled to an acquittal if it had been proved that "the deceased had a fair and reasonable trial, that such trial was of the kind directed by Japan and that the accused were authorized to take part in such trial and execution." It was "for the belligerent to decide the form of trial subject to certain fundamental principles of justice."
The Judge Advocate continued:
"I consider these principles to be:
(a) Consideration by a tribunal comprised of one or more men who will endeavour to judge the accused fairly upon the evidence using their own common knowledge of ordinary affairs and if they are soldiers their military knowledge, honestly endeavouring to discard any preconceived belief in the guilt of accused or any prejudice against him.
(b) The accused should know the exact nature of the charge preferred against him.
(c) The accused should know what is alleged against him by way of evidence.
(d) He should have full opportunity to give his own version of the case and produce evidence to support it.
(e) The court should satisfy itself that the accused is guilty before awarding punishment. It would be sufficient if the court believed it to be more likely than not that the accused was guilty.
(f) The punishment should not be one which outrages the sentiments of humanity.
Unless provision is made for observance of all of these principles I do not consider any other form of proceedings which a belligerent might direct would in law really amount to a trial."
B. Evidentiary comment:
It should be noted that the above principles were put forward to the Court by the Judge Advocate in the Trial of Sergeant-Major Shigeru Ohashi and Six Others. The case commentator in Alstotter suggests that the advice of the Judge Advocate is less authoritative than the actual findings of courts, but that, nevertheless such advice carries great weight (as in British and Canadian trials). (Trial of Josef Alstotter and Others, UNWCC, Law Reports of Trials of War Criminals, vol. VI, p. 1,at p.104)
A. Legal source/ authority and evidence:
Article 99 Geneva Convention III:
No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.
No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.
No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.
P.4. Evidence that the right of the accused to know the evidence against him or her was denied.
Trial Of Sergeant-Major Shigeru Ohashi And Six Others (Australian Military Court, Rabaul) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 25, at pp. 26, 30-31 :
"In short, General Immamuras evidence was that the Japanese government had directed a summary trial in the field for war criminals under certain operational conditions, and that those conditions existed at Vunarima in September, 1944."
"4. DENIAL OF A FAIR TRIAL
The Judge Advocate further advised the Court that the accused would be entitled to an acquittal if it had been proved that "the deceased had a fair and reasonable trial, that such trial was of the kind directed by Japan and that the accused were authorized to take part in such trial and execution." It was "for the belligerent to decide the form of trial subject to certain fundamental principles of justice."
The Judge Advocate continued:
"I consider these principles to be:
(a) Consideration by a tribunal comprised of one or more men who will endeavour to judge the accused fairly upon the evidence using their own common knowledge of ordinary affairs and if they are soldiers their military knowledge, honestly endeavouring to discard any preconceived belief in the guilt of accused or any prejudice against him.
(b) The accused should know the exact nature of the charge preferred against him.
(c) The accused should know what is alleged against him by way of evidence.
(d) He should have full opportunity to give his own version of the case and produce evidence to support it.
(e) The court should satisfy itself that the accused is guilty before awarding punishment. It would be sufficient if the court believed it to be more likely than not that the accused was guilty.
(f) The punishment should not be one which outrages the sentiments of humanity.
Unless provision is made for observance of all of these principles I do not consider any other form of proceedings which a belligerent might direct would in law really amount to a trial."
B. Evidentiary comment:
It should be noted that the above principles were put forward to the Court by the Judge Advocate in the Trial Of Sergeant-Major Shigeru Ohashi And Six Others. The case commentator in Alstotter suggests that the advice of the Judge Advocate is less authoritative than the actual findings of courts; but that nevertheless such advice carries great weight (as in British and Canadian trials). (Trial of Josef Alstotter and Others, UNWCC, Law Reports of Trials of War Criminals, vol. VI, p. 1,at p.104)
A. Legal source/authority and evidence:
Trial of Josef Alstotter and Others (The Justice Trial), (before the United States Military Tribunal, Nuremberg) UNWCC, Law Reports of Trials of War Criminals, vol. VI, p. 1, at pp. 96-97, 103:
"5. THE CRIMINAL ASPECTS OF THE DENIAL OF A FAIR TRIAL
[ ]
In dealing with the Nucht und Nebel plan and the guilt particularly of Oeschey and Rothaug the Tribunal stressed the various ways in which the victims of that plan and of those accused had been denied the right to a fair trial before punishment. The Tribunal did not lay down a catalogue of minimum requirements of a fair trial, as did the Judge Advocate acting with the courts which conducted the three Australian trials reported upon in Volume V, and all that can be safely conjectured here is that the United States Military Tribunal regarded certain facts as evidence that such "trials" as were held under the Nacht und Nebel scheme and the proceedings with which Oeschey, Rothaug and Lautz were connected did not approximate to fair trials sufficiently to constitute a defence to a charge brought against those accused and others of taking part in certain governmentally organized plans having a criminal outcome.
[ ]
The following passage from the Judgment of the Tribunal indicates certain features of the Nacht und Nebel plan which it regarded as constituting evidence of its illegal character:
"It remains to arrive at some tentative conclusions on the attitude of the Tribunal which tried Alstotter and others regarding the nature of those aspects of purported trial proceedings which may be used as proof of the offence of denial of a fair trial or as evidence in rebutting the defence that execution or other injury was done in pursuance of a judicial sentence.6
These aspects, which are in addition to those set out in the last section7 may be summarized as follows:
(i) the right of accused persons to know the charge against them,8 and this a reasonable time before the opening of trial, was denied9;
(ii) the right of accused to the full aid of counsel of their own choice was denied, and sometimes no counsel at all was allowed to defend the accused10
(iii) the right to be tried by an unprejudiced judge was denied to accused persons11;
(iv) the right of accused to give or introduce evidence was wholly or partly denied12;
(v) the right of accused to know the evidence against them was denied13.
(vi) the general right to a hearing adequate for a full investigation of a case was denied14.
In addition it is at least possible that the Tribunal regarded the persistent denial of clemency as a further incriminating factor1.
The footnote cross-references by which the points enumerated above have been related to the similar catalogue contained in Volume V of this series reveal a striking uniformity in the attitude of different courts to the characteristics of a fair trial under international law, or conversely to those characteristics which would brand purported judicial proceedings as a denial of a fair trial.2 It can fairly be said that a body of rules is emerging or has emerged in this branch of international law. The analyses contained in these pages and in Volume V of the characteristics just mentioned have, it should be noted, been based on one or more of the following:
(i) The actual findings of United States Military Commissions in trials reported in Volume V;
(ii) The advice of the Judge Advocate in the Australian trials reported in the same volume. This source is less authoritative than the last; nevertheless while the Judge Advocates advice need not have been taken by the court, such advice (as in British and Canadian trials) carries great weight;
(iii) The evidence which was at any rate admitted by the courts conducting trials reported on in Volume V, and which may have been taken into account by the courts in deciding on their verdicts and sentences; and
(iv) Passages from the Judgment in the Justice Trial.
Due to the construction of this last Judgment it is not always possible to say with certainty what the Tribunal regarded as criminal and what merely as evidence of knowledge, intent or motive. Again, the other three sources set out above are not all of equal authoritativeness. Nevertheless it must be recognized that even the first, namely the findings of courts upon certain charges, are not of more than persuasive authority, and it is submitted that the analysis that has been attempted here and in Volume V of the nature of the denial of a fair trial, even though based on such differing categories of authority, is not without interest in the building up of a jurisprudence of war crimes law."
"1. see p. 84 regarding this characteristic of counts Two and Three
[ ]
6.The following account should be compared with the summary contained on pages 73-77 of Volume V, which as already stated attempt to summarise the results of the trials reported upon in that volume on the same issue.
7. See p. 100
8. see p. 97; and compare p. 119.
9. compare item (i) on p. 75 of Volume V.
10. see pp. 97 and 101. Compare item (ii) on p. 74 of Volume V and the footnote thereto. 11.see pp. 101-2 and 119. compare the last complete paragraph on p. 75 of Volume V. 12. see p. 101. Compare item (iii) on page 75 of Volume V
13. see p. 101. Compare item (iii) on page 75 of Volume V
14. see p. 101. compare item (iii) on page 75 of Volume V.)
1. see p. 102
2. the denial of one of the rights enumerated above would not amount to a denial of a fair trial however, and the courts have had to decide in each instance whether a sufficient number of the rights which they have regarded as forming part of the general right to a fair trial were sufficiently violated to warrant the making of one or other of the legal deductions discussed on pages 102-3"
A. Legal source/authority and evidence:
Trial of Lieutenant General Shigeru Sawada and Three Others, UNWCC, Law Reports of Trials of War Criminals, Vol. V, p. 1 at pp. 12-13:
"It is impossible to draw up with certainty a complete catalogue of the aspects of the trial which were regarded by the Commission as contributing to its criminal character, but the findings of the Commission set out above show that the following facts were regarded by it as incriminating:
(i) the airmen were tried "on false and fraudulent charges" and "upon false and fraudulent charges". [ ]
(ii) the airmen were not afforded "the right to counsel";
(iii) the airmen were not given the right to "the interpretation of the proceedings into English";
(iv) the airmen were not allowed "an opportunity to defend themselves."
Furthermore the following facts of greater or lesser importance which were admitted in evidence may have been taken into account by the Commission in deciding that the victims were not given "a fair hearing or trial";
(i) the fliers were not told that they were being tried, or told of any charges against them;
(ii) the airmen were not shown the documents which were used in evidence against them.
P.5. Evidence of convictions not supported by evidence.
P.5.1. Evidence that evidence was manifestly inadequate to sustain the verdict and sentence.
A. Legal source/authority and evidence:
Trial of Hans Paul Helmuth Latza and Others, by the Eidsivating Lagmannsrett (Court of Appeal) and the Supreme Court of Norway, UNWCC, Law Reports of Trials of War Criminals, vol. XIV, at pp. 67-68:
"After reviewing the facts and evidence the Lagmannsrett turned to the legal issues involved.
The Lagmannsrett held that although there were no express provisions of international law in force as regards court procedure to be followed by an occupation power, there were certain minimum demands which were indispensable, namely:
(a) that the tribunal or court in question shall be an impartial one and not bound by directives or orders from above.
[ ]
(b) that those accused before the tribunal or court in question shall be manifestly made acquainted with the concrete points of the charges brought against them. It could, however not be regarded as essential that a written charge sheet be served upon the accused before the trial.
[ ]
(c) that the accused before the tribunal or court in question must be given opportunity to explain themselves and state their case freely and to counter each and very point of the charge.
[ ]
(d) that the evidence submitted to the tribunal or court in question must be manifestly adequate to sustain the verdict and sentence.
[ ]
(e) that the accused before the tribunal or court in question shall be given opportunity to offer and submit their counter-evidence."
B. Evidentiary comment:
On appeal to the Supreme Court, it was held that the violation of a single requirement for fair trial as listed above does not necessarily lead to an unfair trial, the court having to weigh in each instance whether the outcome amounted to denial of a fair trial. (Knut Dormann, "Elements of War Crimes under the Rome Statute", Cambridge University Press, 2002, p. 104) (footnotes omitted)
P.5.2. Evidence of conviction despite lack of evidence.
A. Legal source/authority and evidence:
Trial of Lieutenant General Harukei Isayama And Seven Others, (United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 60, at pp. 60, 65:
1. THE CHARGES .
It was charged that the accused, Lieutenant-General Harukei Isayama, Colonel Seiichi Furukawa, Lieutenant-Colonel Naritaka Sugiura, Captain Yoshio Nakano, Captain Tadao Ito, Captain Masaharu Matsui, First-Lieutenant Jitsuo Date and First-Lieutenant Ken Fujikawa did each " at Taihoku, Formosa, wilfully, unlawfully and wrongfully, commit cruel, inhuman and brutal atrocities and other offences against certain American Prisoners of War, by permitting and participating in an illegal and false trial and unlawful killing of said prisoners of war, in violation of the laws and customs of war." The charges asserted that the offences of the first two accused were committed "on or between 14th April, 1945 and 19th June, 1945," and those of the others "on or between 21st May, 1945 and 19th June, 1945"; and that each of the accused except the first two mentioned above committed the offences charged "as a member of a Japanese Military Tribunal."
"The following facts arising from the evidence admitted by the Commission are worth recapitulating since they may have been regarded by the latter as proving, or helping to prove, that the accused permitted and participated in " an illegal and false trial and unlawful killing " of the victims :
(i) the evidence brought against the airmen was falsified ;
(ii) little or no evidence connecting the victims with the alleged illegal bombing was produced apart from the falsified statements ;
(iii) the prisoners were denied Defence Counsel ;
(iv) the prisoners were denied the opportunity to obtain evidence or witnesses on their own behalf ;
(v) the greater part of the proceedings were not interpreted to them ;
(vi) all the trials were completed in one day."
A. Legal source/authority and evidence:
Trial of Lieutenant General Harukei Isayama And Seven Others, (United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 60, at pp. 60, 65:
1. THE CHARGES.
It was charged that the accused, Lieutenant-General Harukei Isayama, Colonel Seiichi Furukawa, Lieutenant-Colonel Naritaka Sugiura, Captain Yoshio Nakano, Captain Tadao Ito, Captain Masaharu Matsui, First-Lieutenant Jitsuo Date and First-Lieutenant Ken Fujikawa did each " at Taihoku, Formosa, wilfully, unlawfully and wrongfully, commit cruel, inhuman and brutal atrocities and other offences against certain American Prisoners of War, by permitting and participating in an illegal and false trial and unlawful killing of said prisoners of war, in violation of the laws and customs of war." The charges asserted that the offences of the first two accused were committed "on or between 14th April, 1945 and 19th June, 1945," and those of the others "on or between 21st May, 1945 and 19th June, 1945"; and that each of the accused except the first two mentioned above committed the offences charged "as a member of a Japanese Military Tribunal."
"The following facts arising from the evidence admitted by the Commission are worth recapitulating since they may have been regarded by the latter as proving, or helping to prove, that the accused permitted and participated in " an illegal and false trial and unlawful killing " of the victims :
(i) the evidence brought against the airmen was falsified ;
(ii) little or no evidence connecting the victims with the alleged illegal bombing was produced apart from the falsified statements ;
(iii) the prisoners were denied Defence Counsel ;
(iv) the prisoners were denied the opportunity to obtain evidence or witnesses on their own behalf ;
(v) the greater part of the proceedings were not interpreted to them ;
(vi) all the trials were completed in one day."
P.5.4. Evidence of falsified evidence.
Trial of Lieutenant General Harukei Isayama And Seven Others, (United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 60, at pp. 60, 65:
1. THE CHARGES .
It was charged that the accused, Lieutenant-General Harukei Isayama, Colonel Seiichi Furukawa, Lieutenant-Colonel Naritaka Sugiura, Captain Yoshio Nakano, Captain Tadao Ito, Captain Masaharu Matsui, First-Lieutenant Jitsuo Date and First-Lieutenant Ken Fujikawa did each " at Taihoku, Formosa, wilfully, unlawfully and wrongfully, commit cruel, inhuman and brutal atrocities and other offences against certain American Prisoners of War, by permitting and participating in an illegal and false trial and unlawful killing of said prisoners of war, in violation of the laws and customs of war." The charges asserted that the offences of the first two accused were committed "on or between 14th April, 1945 and 19th June, 1945," and those of the others "on or between 21st May, 1945 and 19th June, 1945"; and that each of the accused except the first two mentioned above committed the offences charged "as a member of a Japanese Military Tribunal."
"The following facts arising from the evidence admitted by the Commission are worth recapitulating since they may have been regarded by the latter as proving, or helping to prove, that the accused permitted and participated in " an illegal and false trial and unlawful killing " of the victims :
(i) the evidence brought against the airmen was falsified ;
(ii) little or no evidence connecting the victims with the alleged illegal bombing was produced apart from the falsified statements ;
(iii) the prisoners were denied Defence Counsel ;
(iv) the prisoners were denied the opportunity to obtain evidence or witnesses on their own behalf ;
(v) the greater part of the proceedings were not interpreted to them ;
(vi) all the trials were completed in one day."
P.6. Evidence of violation of the principle of individual criminal responsibility.
A. Legal source/authority and evidence:
Article 87 Geneva Convention III:
Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.
When fixing the penalty, the courts or authorities of the Detaining Power shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will. The said courts or authorities shall be at liberty to reduce the penalty provided for the violation of which the prisoner of war is accused, and shall therefore not be bound to apply the minimum penalty prescribed.
Collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden.
No prisoner of war may be deprived of his rank by the Detaining Power, or prevented from wearing his badges.
Article 33 Geneva Convention IV:
No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
Pillage is prohibited.
Reprisals against protected persons and their property are prohibited.
P.7. Evidence of violation of the principle of nullum crimen sine lege.
A. Legal source/authority and evidence:
Article 99 Geneva Convention III:
No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.
No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.
No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.
Article 67 Geneva Convention IV:
The courts shall apply only those provisions of law which were applicable prior to the offence, and which are in accordance with general principles of law, in particular the principle that the penalty shall be proportioned to the offence. They shall take into consideration the fact that the accused is not a national of the Occupying Power.
P.8. Evidence of violation of the principle of non bis in idem.
A. Legal source/authority and evidence:
Article 86 Geneva Convention III:
No prisoner of war may be punished more than once for the same act, or on the same charge.
Article 117(3) Geneva Convention IV:
Subject to the provisions of the present Chapter, the laws in force in the territory in which they are detained will continue to apply to internees who commit offences during internment.
If general laws, regulations or orders declare acts committed by internees to be punishable, whereas the same acts are not punishable when committed by persons who are not internees, such acts shall entail disciplinary punishments only.
No internee may be punished more than once for the same act, or on the same count.
P.9. Evidence that the accused was not informed of his/her rights to appeal.
A. Legal source/authority and evidence:
Article 106 Geneva Convention III:
Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.
Article 73 Geneva Convention IV:
A convicted person shall have the right of appeal provided for by the laws applied by the court. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.
The penal procedure provided in the present Section shall apply, as far as it is applicable, to appeals. Where the laws applied by the Court make no provision for appeals, the convicted person shall have the right to petition against the finding and sentence to the competent authority of the Occupying Power.
P.10. Evidence that the proceedings were completed in an extremely short time span.
A. Legal source/authority and evidence:
Trial Of General Tanaka Hisakasu And Five Others,(United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, p. 66, at. pp. 66, 70-71:
"1. THE CHARGES
The Charge against General Tanaka Hisakasu was that, as Governor General of Hong Kong and Commanding General of the Japanese 23rd Imperial Expeditionary Army in China, he " did, at Canton, China and/or Hong Kong knowingly, wilfully, unlawfully and wrongfully commit cruel, inhuman and brutal atrocities and other offences against " a named United States Major, " by authorizing, permitting, participating in and approving of the illegal, unfair, false and null trial and the unlawful killing " of the Major, in violation of the laws and customs of war.
"An examination of the evidence admitted by the Commission throws light upon what the latter may have regarded as constituting the offence committed by the members of the Japanese Military Tribunal. In particular the following facts may have been taken as illustrating the "illegal, unfair, false and null" character of the proceedings taken against the Major:
(i) no Defence Counsel was provided for the accused, who was in no position to secure one himself,
(ii) the Major had no opportunity to prepare his defence or secure evidence on his own behalf,
(iii) no witnesses appeared at the trial apart from the Major, and his evidence in which he denied intentionally attacking a civilian boat was ignored by the Tribunal, since, despite that evidence, they found him guilty of an offence against the " Enemy Airmen Act,"1
(iv) the entire proceedings lasted not more than two hours."
"1. See p. 67"
Trial of Lieutenant General Harukei Isayama And Seven Others, (United States Military Commission, Shanghai) UNWCC, Law Reports of Trials of War Criminals, Volume V, p. 60, at pp. 60, 65:
1. THE CHARGES.
It was charged that the accused, Lieutenant-General Harukei Isayama, Colonel Seiichi Furukawa, Lieutenant-Colonel Naritaka Sugiura, Captain Yoshio Nakano, Captain Tadao Ito, Captain Masaharu Matsui, First-Lieutenant Jitsuo Date and First-Lieutenant Ken Fujikawa did each " at Taihoku, Formosa, wilfully, unlawfully and wrongfully, commit cruel, inhuman and brutal atrocities and other offences against certain American Prisoners of War, by permitting and participating in an illegal and false trial and unlawful killing of said prisoners of war, in violation of the laws and customs of war." The charges asserted that the offences of the first two accused were committed "on or between 14th April, 1945 and 19th June, 1945," and those of the others "on or between 21st May, 1945 and 19th June, 1945"; and that each of the accused except the first two mentioned above committed the offences charged "as a member of a Japanese Military Tribunal."
"The following facts arising from the evidence admitted by the Commission are worth recapitulating since they may have been regarded by the latter as proving, or helping to prove, that the accused permitted and participated in " an illegal and false trial and unlawful killing " of the victims :
(i) the evidence brought against the airmen was falsified ;
(ii) little or no evidence connecting the victims with the alleged illegal bombing was produced apart from the falsified statements ;
(iii) the prisoners were denied Defence Counsel ;
(iv) the prisoners were denied the opportunity to obtain evidence or witnesses on their own behalf ;
(v) the greater part of the proceedings were not interpreted to them ;
(vi) all the trials were completed in one day."
