Waterboarding article

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Charging Waterboarding As a War Crime: U.S. War Crime Trials in the Far East

after World War II

By Wolfgang Form

INTRODUCTION

The discussion concerning water torture has gained momen-tum in recent years, particularly in the United States in connec-tion with the activities of the CIA during the recent war on ter-ror.1 However, water torture has frequently emerged in United States history beginning with the Philippine insurgency to World War II to the Vietnam War.2 In 1968, a report in the Washington Post aroused furor when it published a picture de-picting a U.S. soldier pouring water over a North Vietnamese

Dr. Wolfgang Form, Political Science and Peace and Conflict Studies, University of Marburg, Biegenstr, Germany; Member, Austrian Research Centre for Post-War Trials Advisory Board; Co-founder, Research and Documentation Centre for War Crimes TrialsICWC (project co-ordinator). This publication is based on my Nov. 11, 2009 lecture held at Chapman University School of Law. I thank ICWCs students Philipp Graebke, Sascha Hoermann, Aoife Holmes, and Corinna Josefiak for excellent research assistance. Im very grateful to Michael Bayzler from Chapman University School of Law for very helpful discussions on my topic. 1 For an overview on waterboarding in the media see Neal Desai et al., Torture at Times: Waterboarding and the Media, The Joan Shorenstein Center on the Press, Politics, and Public Policy, Harvard University (2010), available at http://www.hks.harvard.edu/ presspol/publications/papers/torture_at_times_hks_students.pdf.

From its first mention of waterboarding in 1901 until 1925, the N.Y. Times rarely described waterboarding as torture, calling it torture or implying the practice was torture in only 11.9% of articles (10 of 84). Most often, water-boarding was not given any treatment (61.9% of articles had no treatment, or 52 of 84). This pattern of treatment changed with the next mention of water-boarding, in 1931, and remained generally consistent until another dramatic shift, in 2004. [] From 1931 to 1999, NY Times journalists called waterboard-ing torture or implied that it was torture in 81.5% (44 of 54) of the articles. By contrast, from 20022008, waterboarding was called torture or implied to be torture in just 2 of 143 articles (1.4%). Notably, of these two articles, one was about waterboarding in Chile and made no mention of the U.S. The decrease in the use of the word torture corresponds to an increase in the use of no treat-ment and softer treatment. The use of softer treatment increased from 0% (0 of 54) between 1931 and 2002 to 45.5% (65 of 143) between 2002 and 2008. No treatment use increased from 9.3% of articles (5 of 54) from 1931 to 1999 to 28.7% (41 of 143) in 20022008.

Id. at 78. 2 Id. at 3.


248 Chapman Journal of Criminal Justice [Vol. 2:1

prisoner of wars (POW) cloth-covered face.3 References to crimi-nal prosecutions of waterboarding in military courts appeared by the Spanish-American War, at the beginning of the 20th Centu-ry, when U.S. Army Major Edwin Glenn was sentenced for using the water cure.4 Recently there have been an increasing num-ber of reports on the use of torture by U.S. government agencies during prisoner interrogations.5 Former CIA agent John Kir-iakou said in an interview with ABC News that subjecting pris-oners to a procedure that simulated drowning was necessary and led to the extraction of important information.6 Kiriakou was significantly involved in CIA missions following the 9/11 terrorist attacks and the interrogation of the first Al-Qaida suspect, Abu Zubaida.7 This method of interrogation caused Abu Zubaida to submit in less than a minute. Thereupon he delivered infor-mation that was allegedly used to prevent an entire string of ter-rorist attacks.8

Judge Evan Wallach clarifies the nature of what is called waterboarding as follows:

That term is used to describe several interrogation techniques. The

victim may be immersed in water, have water forced into the nose and

mouth, or have water poured onto material placed over the face so

that the liquid is inhaled or swallowed. The media usually character-

ize the practice as simulated drowning. Thats incorrect. To be ef-fective, water boarding is usually real drowning that simulates death.

3 Eric Weiner, Waterboarding: A Tortured History, NPR, Nov. 3, 2007, http://www.npr.org/templates/story/story.php?storyId=15886834. 4 Water torture was commonly inflicted on U.S. POWs during the American-Philippine War. GARY D. SOLIS, THE LAW OF ARMED CONFLICT: INTERNATIONAL HUMANITARIAN LAW IN WAR 462 (Cambridge University Press 2010); Weiner, supra note 3. 5 See e.g., David Johnston & James Risen, The Reach of War: The Interrogations; Aides Say Memo Backed Coercion Already in Use, N. Y. TIMES, June 27, 2004, at A27 available at http://www.nytimes.com/2004/06/27/world/reach-war-interrogations-aides-say-memo-backed-coercion-already-use.html?fta=y; Alan Dershowitz, Op.-Ed., Covering Up the Coverup, BOSTON GLOBE, May 15, 2004, at A15; Alan Dershowitz, Editorial, Want to Torture? Get a Warrant, SAN FRANCISCO CHRONICLE, Jan. 22, 2002, at A19, available at http://www.alandershowitz.com/publications/docs/torturewarrants2.html; William Safire, Waterboarding, N. Y. TIMES MAGAZINE, Mar. 9, 2008, at 16. 6 See MICHAEL HAAS, GEORGE W. BUSH, WAR CRIMINAL? THE BUSH ADMINISTRATIONS LIABILITY FOR 269 WAR CRIMES 83 (Greenwood Pub. Group 2009); See also SOLIS, supra note 4, at 462. 7 Peter Finn & Joby Warrick, Detainees Harsh Treatment Foiled No Plots, WASH. POST, Mar. 29 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/ 2009/03/28/AR2009032802066.html; Ex-CIA Officer Speaks Out Against Waterboarding, NPR, Dec. 12, 2007, http://www.npr.org/templates/story/story.php?StoryId=17181403. 8 Joby Warrick & Dan Eggen, Waterboarding Recounted: Ex-CIA Officer Says It Probably Saved Lives but is Torture, WASH. POST, Dec. 11, 2007, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/12/10/AR2007121002091. html.


2011] Charging Waterboarding As a War Crime 249

That is, the victim experiences the sensations of drowning: struggle,

panic, breath-holding, swallowing, vomiting, [and] taking water into

the lungs[.] . . . The main difference is that the drowning process is

halted. According to those who have studied water boardings effects, it can cause severe psychological trauma, such as panic attacks, for

years. 9

Waterboarding is a method of torture that does not leave any bodily traces and is therefore subsequently difficult to prove.10 Louise Arbour, United Nations High Commissioner for Human Rights, stated, I would have no problems with describing this practice as falling under the prohibition of torture.11 But there are still those who criticize this viewpoint.12 The topic is particu-larly explosive when consulted against the historical background

9 Evan Wallach is a Judge on the U.S. Court of International Trade and a former JAG officer. Evan Wallach, Op-Ed., Waterboarding Used to be a Crime, WASH. POST, Nov. 4, 2007, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/11/02/ AR2007110201170.html [hereinafter Wallach, Op-Ed.]. 10 Weiner, supra note 3. 11 A summary of the debate surrounding practices utilizing waterboarding as a method for interrogation has been outlined in various formats. EDWARD L. AYERS ET AL., AMERICAN PASSAGES: A HISTORY OF THE UNITED STATES 964-65 (Wadsworth Publishing, 2nd ed. 2009) (2003); PHYSICIANS FOR HUMAN RIGHTS & HUMAN RIGHTS FIRST, LEAVE NO MARKS: ENHANCED INTERROGATION TECHNIQUES AND THE RISK OF CRIMINALITY 1-4 (2007) available at http://physiciansforhumanrights.org/library/documents/reports/leave-no-marks.pdf; Mica Rosenberg, U.N. Says Waterboarding Should be Prosecuted as Torture, REUTERS UK, Feb. 8, 2008, http://uk.reuters.com/article/idUKN0852061620080208. 12 See Demetri Sevastopulo, Cheny Endorses Simulated Drowning, MSNBC, Oct. 26, 2006, http://www.msnbc.msn.com/id/15433467/ns/business-financial_times/#; Scott Shane, Soviet-Style Torture Becomes Interrogation, N. Y. TIMES, June 3, 2007, at 43, available at http://www.nytimes.com/2007/06/03/weekinreview/03shane.html; Scott Shane, Da-vid Johnston & James Risen, Secret U.S. Endorsement of Severe Interrogations, N.Y. TIMES, Oct. 4, 2007, at A1, available at http://www.nytimes.com/2007/10/04/ washington/04interrogate.html.

Waterboarding is a very nasty technique for surebut it is considerably differ-ent (particularly in the manner administered by the CIA) than, say, mutilation with electric drills, rape, splitting knees, or forcing a terrorist to watch his children suffer and die in order to try to elicit information from him. Water-boarding is a technique that has been routinely used in the training of some U.S. military personneland which the journalist Christopher Hitchens en-dured. I certainly wouldnt want to undergo waterboardingbut while a very harsh technique, it is one that was applied in part because it would do far less damage to a person than other techniques. It is also surely relevant that wa-terboarding was not used randomly and promiscuously, but rather on three known terrorists. And of the thousands of unlawful combatants captured by the U.S., fewer than 100 were detained and questioned in the CIA program, ac-cording to Michael Hayden, President Bushs last CIA director, and former At-torney General Michael Mukaseyand of those, fewer than one-third were sub-jected to any of the techniques discussed in the memos on enhanced interrogation.

Peter Wehner, Morality and Enhanced Interrogation Techniques, COMMENTARY, Apr. 27, 2010, available at http://www.commentarymagazine.com/viewarticle.cfm/morality-and-enhanced-interrogation-techniques-15125.



of the War Crime Trials Program of the United States following the Second World War (WWII).

Beginning in 1945, military legal proceedings were brought against Japanese war criminals that had engaged in water tor-ture. This was neither a singular occurrence nor a lapse by a single individual.13 The United States acted as a participant in the world community, both as an Allied partner and as a member of The United Nations War Crimes Commission (UNWCC).14 American judges roundly condemned the practice as it was ap-plied to American servicemen, and voted to convict the perpetra-tors.15 Consequently, the justification of this course of action on the part of the United States creates a discord with the rule of law. Excessive acts by individuals can always happen; no gov-ernment is immune from this. It is a question of whether it is tolerated, supported, or even required, thereby becoming a strat-egywhich is a massive contravention of the international con-ventions. Every democracy, including the United States, has employed torture outside the law.

Part I of this article describes the history of American war crimes trial programs in the Far East. Part II looks into criminal prosecution of war crimes in the Far East by the United States. Part III describes the underlying forms of water torture by ana-lyzing and comparing them with known cases of waterboarding by means of case studies. This article will prove that the crimi-nal prosecutions by American military specifically included wa-terboarding. Rather than an outlier in isolated cases, water-boarding was an integral part of the Japanese concept of torture throughout WWII and was punishable as a war crime.

13 Restricted Memorandum (June 1946), National Archives RG 331, Records of SCAP, Box 1912 (describing Japanese methods of POW Interrogation. The victims stom-ach is filled up with water . . . . A plank is then placed across the distended stomach . . . then . . . forcing out the water from the stomach.). 14 UNITED NATIONS WAR CRIMES COMMN, HISTORY OF THE UNITED NATIONS WAR CRIMES COMMISSION AND THE DEVELOPMENT OF THE LAWS OF WAR 118 (William S. Heine & Co., Inc. 2006) (1948). 15 See Potsdam Proclamation (July 26, 1945), National Archives RG 331, Records of SCAP, BOX 9776, App. 1, available at http://www.army.mil/postwarjapan/downloads/ Potsdam%20Declaration.pdf (demanding the immediate unconditional surrender of the armed forces of Japan. We do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice well be meted out to all war criminals, including those who have visited cruelties upon our prisoners.). See also, Terms for Japanese Sur-render, July 26, 1945, 10, 3 Bevans 1204 (same).



I. HISTORY OF WWII WAR CRIMES TRIAL PROGRAMS

IN THE FAR EAST

As early as 1942, Allies in Europe and the Far East sought to coordinate a unified course of action to penalize war crimes16 and crimes against humanity.17 The UNWCC, founded in Octo-ber of 1943, took center stage in this effort. In view of the in-creasingly large number of war crimes committed by the Japa-nese in the Far East and the need for early investigation and ex-examination, it was contemplated from the outset that a Far Eastern panel of the UNWCC should be created.18 Shortly after the surrender of Japan, Allied directives were prepared providing for the trial and punishment of war criminals.19 On April 25, 1944, at the 15th London UNWCC meeting, Chinas representa-tive submitted a formal proposal to establish a Far Eastern Sub-Commission. It was resolved that a special committee, with the Chinese representative as chairman, should be set up to consider and report on the subject.20 Later that year, the UNWCC com-missioned the opening of the International Military Tribunal for the Far East (IMTFE or Tokyo Trials) in Chungking, China.21 One of its main functions was to make [r]ecommendations as to any modification of the principles and rules adopted by the [UNWCC] which may be required by special local conditions and shall be reported to the Commission for approval.22

During the initial planning of the Far East trials, it was as-sumed that each prosecution would require the prior authoriza-tion of the Allied Headquarters, UNWCC, or national admin-istration.23 However, on October 12, 1945, Lord Wright,

16 GEORGE CREEL, WAR CRIMINALS AND PUNISHMENT 14050 (William L. Chenery & Charles Colebaugh eds., Robert M. McBride & Co. 1944). 17 GEOFFREY ROBERTSON, CRIMES AGAINST HUMANITY: THE STRUGGLE FOR GLOBAL JUSTICE 203-04 (Stefan McGrath et al., eds., The New Press 2000) (1999). 18 PHILLIP PICCIGALLO, THE JAPANESE ON TRIAL: ALLIED WAR CRIMES OPERATIONS IN THE FAR EAST, 19451951 (Univ. of Texas Press 1979); UNITED NATIONS WAR CRIMES COMMN, supra note 14, at 151; M.E. Bathurst, The United Nations War Crimes Commis-sion, 39 AM. J. INTL L. 565, 566, 568-70 (1945). 19 ROBERT J. BUTOW, JAPANS DECISION TO SURRENDER 16971, 208-09 (Stanford Univ. Press 1954). 20 UNWCC Committee on the Establishment of a Far Eastern and Pacific Sub-Commission Meeting Minutes, June 1, 1944, NAC RG A 2937, 48 (on file at Australian National Archives, Canberra) available at http://recordsearch.naa.gov.au/SearchN Retrieve/Interface/SearchScreens/AdvSearchSeries.aspx (search Series Number 2937, follow Control Symbol #48) [hereinafter UNWCC Committee]. 21 Id. 22 Id. at App. 3; see also LOYD E. LEE, WORLD WAR II IN ASIA AND THE PACIFIC AND THE WARS AFTERMATH 459 (Greenwood Pub. Group 1998) (purpose for the set up of the Far East commission was to not only prosecute Japanese war criminals but to submit modifications of the UNWCC procedures to meet conditions in Asia). 23 UNWCC Committee, supra note 20.



Chairman of the UNWCC, reported that only the cases concern-ing major war criminals would be tried by international tribunals in Nuremberg24 and Tokyo.25 Trials of ordinary war criminals in Australia,26 the United Kingdom,27 and the United States28 had already begun their proceedings or would begin them in the near future.

The judgment of the Tokyo Trial notes that although the Japanese signed the Fourth Hague Convention of 1907 Respect-ing the Laws and Customs of War on Land, which provided for humane treatment of POWs and condemned treacherous and in-humane conduct of war, Japanese war policy tolerated ill-treatment of prisoners.29 Long before WWII began young men of Japan had been taught [t]he greatest honour [sic] is to die for the

24 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL NUREMBERG 14 NOV. 19451 OCT. 1946 (1947) available at http://www.loc.gov/ rr/frd/Military_Law/NT_major-war-criminals.html; BRADLEY SMITH, THE AMERICAN ROAD TO NUREMBERG: THE DOCUMENTARY RECORD 19441945 (Hoover Institution Press 1982); Evan Wallach, The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did they Provide an Outline for International Legal Procedure, 37 COLUM. J. TRANSNAT'L L. 851, 851-883 (1999); Report from Robert H. Jackson, United States Rep-resentative, to the International Conference on Military Tribunals, Jun. 7, 1945, available at http://avalon.law.yale.edu/imt/jack08.asp (Robert Jackson wrote about the necessity of these (and other) war crimes tribunals:

What shall we do with [German war criminals]? We could, of course, set them at large without a hearing. But it has cost unmeasured thousands of American lives to beat and bind these men. To free them without a trial would mock the dead and make cynics of the living. On the other hand, we could execute or otherwise punish them without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would violate pledges repeatedly given, and would not set easily on the American conscience or be remembered by our children with pride.).

25 THE TOKYO JUDGMENT: THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (I.M.T.F.E), 29 APR. 194612 NOV. 1948 ( B. V. A. Rling and C. F. Rter eds, APA-University Press Amsterdam 1977); see also TIM MAGA, JUDGMENT AT TOKYO: THE JAPANESE WAR CRIMINALS ON TRAIL (University Press 2001); B.V.A. RLING, THE TOKYO TRIAL AND BEYOND: REFLECTIONS OF A PEACEMONGER (Antonio Cassese ed., Polity Press 2003); YUMA TOTANI, THE TOKYO WAR CRIMES TRIAL: THE PURSUIT OF JUSTICE IN THE WAKE OF WORLD WAR II (Harvard University Asia Center 2009); JOHN R. PRITCHARD, SONIA M. ZAIDE, THE TOKYO WAR CRIMES TRIAL: THE COMPLETE TRANSCRIPTS OF THE PROCEEDINGS OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST IN TWENTY-TWO VOLUMES (Garland Publishing Co. 1981); JOHN R. PRITCHARD, SONIA M. ZAIDE, & DONALD C. WATT, THE TOKYO WAR CRIMES TRIAL: INDEX AND GUIDE, 5 vol. (Gar-land Publishing 1981-87). 26 See D.C.S. Sissons, The Australian War Crimes Trials And Investigations (1942-51) 17 (Berkeley 2006) available at http://socrates.berkeley.edu/~warcrime/documents/ Sissons%20Final%20War%20|Crimes%20Text%2018-3-06.pdf. 27 PHILIP PICCIGALLO, THE JAPANESE ON TRIAL: ALLIED WAR CRIMES OPERATIONS IN THE FAR EAST 19451951 96120 (University of Texas Press 1980). 28 Id. at 3495. 29 IMTFE JUDGEMENT, 110506 (Patrick Clancey trans., HyperWar Foundation 1948), avaiable at http://www.ibiblio.org/hyperwar/PTO/IMTFE/IMTFE-8.html; Facsimile online at National Archive Canberra(NAC) Record Group (RG) A4331/741/1, pp. 1105.



Emperor.30 In this spirit, it was an ignominy for Japanese sol-diers to surrender to the enemy and, by the same token, it was a dishonor for an Allied soldier to surrender. This point of view is reflected in Japanese ill treatment of POWs.31 The Japanese war policy made no distinction between the soldier who fought hon-ourably [sic] and courageously up to an inevitable surrender, and the soldier who surrendered without a fight. All enemy soldiers who surrendered under any circumstance were to be regarded as being disgraced and entitled to live only by the tolerance of their captors.32 In this context, it is interesting to note that Hideki Tj, Prime Minister of Japan from 1941 to 1944,33 gave instruc-tions to chiefs of POW camps stating that [i]n Japan we have our own ideology concerning prisoners of war, which should nat-urally make their treatment more or less different from that in Europe and America.34

By neglecting to punish those guilty of ill treatment of POWs and civilian internees, the Japanese Government condoned such treatment including the use of water torture.

[They] also attempted to conceal the ill-treatment and murder of pris-

oners and internees by prohibiting the representatives of the Protect-

ing Power from visiting camps, by restricting such visits as were al-

lowed, by refusing to forward to the Protecting Power complete lists of

prisoners taken and civilians interned, by censoring news relating to

prisoners and internees, and ordering the destruction of all incrimi-

nating documents at the time of the surrender of Japan. Formal and

informal protests and warnings against violations of the laws of war

lodged by the Allies during WWII were mostly ignored. 35

Therefore, the judgment of the IMTFE is also an important document for prosecuting torture, especially water treatment, as a war crime. It held,

The practice of torturing prisoners of war and civilian internees pre-

vailed at practically all places occupied by Japanese troops, both in

the occupied territories and in Japan. The Japanese indulged in this

practice during the entire period of the Pacific War. Methods of tor-

ture were employed in all areas so uniformly as to indicate policy both

in training and execution. . . . The so-called water treatment was commonly applied. The victim was bound or otherwise secured in a

prone position; and water was forced through his mouth and nostrils

into his lungs and stomach until he lost consciousness. Pressure was

30 IMTFE JUDGEMENT, supra note 29. 31 Id. 32 Id. 33 COURTNEY BROWN, TOJO: THE LAST BANZAI (Da Capo Press 1998). 34 IMTFE JUDGEMENT, supra note 29, at 1106. 35 Id. at 1127.



then applied, sometimes by jumping upon his abdomen to force the

water out. The usual practice was to revive the victim and successive-

ly repeat the process.36

The IMTFE judgment listed locations all over the Far East and Pacific War Theatre, mostly consisting of detention camps for prisons.37 The U.S. Military Commissions for prosecution of war crimes were established months before the IMTFE began.38 The Judge Advocate General (JAG) described military commis-sions after WWII as not being a court or part of the judicial sys-tem.39 Rather, it was an instrumentality for the more efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-Chief. . . . In general, however, [Congress] has left it to the President, and the military commanders representing him, to employ the commission, as oc-

36 Id. at 1057-59 (The Japanese Military Police and the Kempeitai (the Japanese Ge-stapo), were most active in inflicting such tortures, but also other Army and Navy units used the same methods as the Military Police. It was, however, a reasonable inference that the conduct of the Kempeitai and the camp guards reflected the policy of the War Ministry.). 37 Id. at 1059 (stating:

[t]here was evidence that this torture was used in the following places: China, at Shanghai, Peiping and Nanking; French Indo-China, at Hanoi and Saigon; Malaya, at Singapore; Burma, at Kyaikto; Thailand, at Chumporn; Andaman Islands, at Port Blair; Borneo, at Jesselton; Suma-tra, at Medan, Tadjong Karang and Palembang; Java, at Batavia, Ban-dung, Soerabaja and Buitenzong; Celebes, at Makassar; Portuguese Ti-mor, at Ossu and Dilli; Philippines, at Manila, Nichols Field, Palo Beach and Dumaguete; Formosa, at Camp Haito; and in Japan, at Tokyo.).

38 See Wigfall Green, The Military Commission, 42 AM. J. INT'L L. 832, 83248 (1948), for the history and jurisdiction of military commissions. See also JAMES L. BRIERLY, THE LAW OF NATIONS: AN INTRODUCTION TO THE INTERNATIONAL LAW OF PEACE 49 (Sir Humphrey Waldock ed.,Oxford University Press 3rd ed. 1978) (1942) ([c]ustom in its legal sense means more than mere habit or usage; it is a usage felt by those who follow it to be an obligatory one.). See Willard Cowles, Universality Of Jurisdiction Over War Crimes, 33 CAL. L. REV. 177, 20405 (1945) (for jurisdiction in the Far East after WWII); General Orders No. 56 (June 4, 1945), National Archives RG 331, Records of SCAP, Box 9818, 1 [hereinafter General Orders] (explaining that power to appoint military commis-sions in the Far East has been vested in the Commanding General of each Army); Activi-ties of the Far Eastern Commission, Report by the Secretary General (Feb. 26, 1946July 10, 1947), National Archives RG 331, Records of SCAP, Box 9776, App. War Crime Pro-gram, Part 1. See also GEORGE SCHWARZENBERGER, WAR CRIMES AND THE PROBLEM OF AN INTERNATIONAL CRIMINAL COURT 6788 (Czechoslovak Yearbook of International Law 1942) (an early publication on Punishment of War Crimes in Europe and the Far East). See generally Thomas Raeburn White, War Crimes and their Punishment, 32 YALE L. REV. 706720 (1943); George Manner, The Legal Nature and Punishment of Criminal Acts of Violence Contrary The Laws of War, 37 AM. J. INT'L L. 407 (1943); Sheldon Glueck, By What Tribunal Shall War Offenders Be Tried, 56 HARV. L. REV 1059 (1943); Hans Kelsen, Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals, 31 CAL. L. REV. 530 (1943); Willard Cowles, Trial of War Criminals by Military Tribunals, 42 AM. J. INT'L L 330 (1944). 39 Updated Memorandum by Capt. A. Fishman, Trials of War Criminals by Military Commission (1964), National Archives RG 331, Records of SCAP, Box 9781, at 1 [herein-after Fishman Memo]; Ex Parte Valandigham, 68 U.S. 243 (1864).



casion may require, for the punishment of war crimes and other offences not cognizable by court-martial.40 The proceedings of military commissions cannot be reviewed by certiorari; a case tried before it is not, properly speaking, a criminal case; in short, to regard it as a court of justice is quite illusory.41 Addi-tionally, a war crime tried by a military commission does not ap-ply American law; it applies the international law relating to the law of warfare, either law made by treaties or law created by in-ternational custom.42

On December 5, 1945, the General Headquarters, Supreme Commander for the Allied Powers, compiled the standing orders for the future U.S. War Crimes Trial Program.43 In general, per-sons, units, and organizations accused of having committed war crimes would have been tried by military commissions convened by, or under the authority of, the Supreme Commander for the Allied Powers.44 A common penal strategy was drafted and con-tinued until the early 1950s. However, Australia, France, the Netherlands, the United Kingdom and the United States each structured their own prosecution programs for Japanese War Criminals and their helpers.45 Some countries established mixed national military commissions in cases where the victim POW came from more than one country.46 The United States military commissions were established dependent upon the number, na-

40 Madsen v. Kinsella, 343 U.S. 341, 345 (1952). 41 See Fishman Memo, supra note 39; See also CHARLES FAIRMAN, THE LAW OF MARTIAL RULE 262-63 (Callaghan and Company 1930). 42 Fishman Memo, supra note 39, at 1. 43 General Orders, supra note 38, 1 & 2. 44 See generally Louis Fischer, Military Commissions: Problems of Authority and Practice, 25 B.U. INT'L L.J. 15-53 (2006) (regarding jurisdiction of military commissions). See also Eugene Steffen, The Exercising of Military and Extraterritorial Jurisdiction Over Civilians and War Crimes (1976) (unpublished thesis, Judge Advocate Generals School, U.S. Army, University of Virginia) (on file with author) available at http://www.loc.gov/rr/ frd/Military_Law/pdf/steffen-thesis.pdf; See also Activities of the Far Eastern Commis-sion, Report by Secretary General (Feb. 26, 1946July 10, 1947), National Archives RG 331, Records of SCAP, Box 9776, App. 39, 5 (a), 3. 45 WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT (Cambridge Univ. Press 2001); See also PICCIGALLO, supra note 18. 46 Judges in Australian trials in the Military courts in Rabul were British, NAC RG A 471/81072 (May 10, 1946); Chinese, NAC RG A 471/80989 (May 16, 1946); Dutch, NAC RG A 471/81642 (Apr. 4, 1947). Australian, Dutch und U.S. Judges were members of the so-called British Royal Warrant Courts and presided over charges such as:

Committing war crime[s] . . . in violation of the laws and usages of war, when engaged in the administration of a group of British and Australian Prisoners of War known as F Force, employed in the construction of the Burma-Siam railway, were together concerned in the inhumane treat-ment of the said Prisoners of War, resulting in the deaths of many, and in the physical suffering of many others of the said Prisoners of War.

The National Archives Kew, London (TNA) WO 235/1034.



ture of the offences involved, and the offenders to be tried.47 They had jurisdiction over all persons charged with war crimes who were in the custody of the convening authority at the time of trial, and over all offences of violations of the laws or customs of war.48 Violations of the laws or customs of war included murder, torture, ill treatment of prisoners of war or persons on the seas, and deportation of civilians for slave labor or for any illegal pur-pose in occupied territory. Moreover, plunder of public or private property; wanton destruction of cities, towns or villages; and devastation, destruction, or damage to public or private property which was not justified by military necessity; could be adjudicat-ed by the United States military commissions.49 In addition to the aforementioned crimes, murder, extermination, enslavement, deportation, or other inhuman acts committed against any civil-ian population, or persecution on political, racial, national or re-ligious grounds, in execution of, or connection with, any offences within the jurisdiction of the commission, could be prosecuted, whether or not in violation of the domestic law of the country where perpetrated.50 A sample of about a quarter of all United States cases in the Far East gave no consideration to previous events.51 Finally, leaders, organizers, instigators, accessories and accomplices participating in a common plan or conspiracy to accomplish any of the foregoing were to be held responsible for all acts performed by any person in execution of that plan or con-spiracy.52

II. UNITED STATES CASES IN THE FAR EAST

The United States had already begun to bring Japanese war criminals before the courts during the war.53 We know of more than 450 cases against about 1400 persons.54 The trials took place at eight legal venues in China, Guam, Japan, Philippines and Marshall Islands. The first case took place December 29,

47 Regulations governing the Trials of Accused War Criminals ( Dec. 5, 1945), Na-tional Archives RG 331, Records of SCAP, Box 9776 (Appendix War Crime Program Part 1) [hereinafter Regulations]. 48 Id. 49 Id. 50 Id. 51 Reviews and Recommendations of the Yokohama Trials. National Archives micro-film collection M 1112, rolls 15. 52 General Orders, supra note 38, at 12. 53 The first military commission held by the United States against Juan Muna Du-enas, was held in Agana, Guam on Dec. 2829, 1944. National Archives Microfilm Collec-tion C-72, roll 1, No. 117.509. 54 Database ICWC, Marburg, (Germany). See table WWII US Military Commis-sionsFar East.



1944 in Agana, Guam.55 The last military commission in Yoko-hama, Japan, passed judgment on Satano, Osamu on October 19, 1949. He was sentenced to 5 years imprisonment.56 No less than 1,289 witnesses were heard by the prosecuting body and 14,083 documents were considered. It is estimated that over 80% of all evidence submitted in the Yokohama Trials was by affidavit.57

TAB. 1 WWII U.S. MILITARY COMMISSIONSFAR EAST 58

Location Cases Accused Date

Unknown 10 10

Agana (Guam) 24 26 12/28/1944 02/18/1946

Kwajalein Atoll

(Marshall Islands,

US)

2 15 11/21/1945 12/19/1945

Manila (Philippines) 42 110 10/29/1945 04/15/1947

Marianas Islands

(Guam) 23 95 06/03/1946 04/28/1949

Samar (Philippines) 1 1 07/19/1945

Shanghai (China) 12 73 01/24/1946 09/16/1946

Tokyo (Japan) 2 2 10/29/1948 02/23/1949

Yokohama (Japan) 332 1059 12/18/1945 10/03/1949

US Supreme Court,

Washington DC 1 1 04/02/1946

Total 449 1392

The trials dealt with the maltreatment of U.S. and Allied POWs. However, there were also civilians from Japanese occu-pied territories amongst the victims.59 The perpetrators were not just Japanese; Koreans often came before the U.S. military com-missions, particularly for acting as watchmen. Furthermore,

55 National Archives Microfilm Collection C-72, roll 1. 56 National Archives RG 153, entry 1021, Box 1Far East Trials. 57 Tabulation of evidence, Regulations governing the Trials of Accused War Crimi-nals (Dec. 5, 1945), National Archives RG 331, Records of SCAP, Box 9776 (Appendix War Crime Program Part 1). 58 Database ICWC, supra note 54. 59 Katsusaburo Komatsu, together with other soldiers under the command of Hidektsu Tanakadate, all members of the Imperial Japanese Army, did, at or near Ilang-Ilang, Davao City, Mindanao, Philippine Islands, in the month of June 1945, while a state of war existed between the United States of America, its allies and dependencies, and Ja-pan, wrongfully and unlawfully kill Mrs. Iligan and her three children, all unarmed, non-combatant Filipino civilians, in violation of the laws of war. Military commission Order No. 28 (Aug. 28, 1947), National Archives, NARA RG 153 Entry 138 2701122 at 2 (cit-ing U.S. v. Ishiguro et. al).



some residents of Japanese occupied territories were tried as col-laborators.60 Twenty collaborators were accused in a total of six-teen cases.61 Amongst them, thirteen were found guilty, five per-sons were found guilty in only one of the two cases, and one of the accused, Jin Ichiro, was acquitted twice.62

The spectrum of war crimes that were prosecuted was quite comprehensive. Prisoners were tortured, maltreated by those on duty, sexually abused, or killed.63 There is an array of docu-ments showing that rape was tried as a war crime before U.S. military commissions. This applied mainly to cases in Agana, Guam, and Manila, Philippines.64 As far as prisoners of war were concerned, the cases mainly dealt with the prosecution of maltreatment and homicide in camps, employment of labor, foot marches, arbitrary/indiscriminate shooting or torture. According to IMTFE, the death rate amongst POWs in Japanese custody was twenty-seven percent.65 This exorbitant percentage may re-flect the brutality and disrespect for human dignity in Japanese warfare.66

At the end of the war crimes trials programs in the Far East, the JAG67 (Judge Advocate General), the prosecuting body of the

60 For example Miguel A. Cruz, who was judged on Mar. 26, 1945, National Archives Microfilm Collection C-72 (RG 125), roll 1. 61 Database ICWC, supra note 54. 62 Yokohama Case No. 288 (Dec. 28, 1948) macroformed on National Archives Micro-film Collection M 1112, roll 4; Yokohama, Case 290 (Aug. 27, 1949, macroformed on na-tional Archive Records, NARA M 1112, roll 4 (The list is missing Chiuma, Sazae Yoko-hama case No. 307 (July 14, 1948) and 336 (July 30, 1948), however, the military commission ordered stay of prosecution (nolle prosequi).). 63 See generally A report on Japanese atrocities and breaches of the rules of warfare, 58-9, 70, 77, 277, 384, and 394 (Mar. 15, 1944), National Archives of Australia, NAC RG A 10943/2 (discussing Australian investigations concerning rape). This report also refer-ences to sexualized violence as war crimes. Id. at 89, 1089, 11718. 64 See, e.g., U.S. v. Onishi, (Apr. 10, 1946) macroformed on National Archive Records, NARA M 1727, roll 33. 65 IMTFE JUDGEMENT, supra note 29, at 1003; PICCIGALLO, supra note 18, at 27. See generally LORD RUSSELL OF LIVERPOOL, THE KNIGHTS OF BUSHIDO: A SHORT HISTORY OF JAPANESE WAR CRIMES DURING WORLD WAR II (Greenhill Books 2006). 66 In the Pacific Theatre 132,124 prisoners were taken by the Japanese from the United States and United Kingdom forces alone of whom 35,756 or 27 percent died in cap-tivity. IMTFE JUDGEMENT, supra note 29, at 1003; NAC RG A 4311/741/1; see also PHILIPP OSTEN, DER TOKIOTER KRIEGSVERBRECHERPROZE UND DIE JAPANISCHE RECHTSWISSENSCHAFt 22 (Berliner Wissenschaftsverlag 2003); PICCIGALLO, supra note 18, at 27. For a general overview, See generally LORD RUSSEL OF LIVERPOOL, supra note 65. Australians [] calculated that [of] 7,116 men captured by the European Axis, just 242 died, while 7,717 died in Japanese camps, again 13,872 returning alive. ALAN LEVINE, CAPTIVITY, FLIGHT, AND SURVIVAL IN WORLD WAR II 137 (Praeger Publishers 2000). 67 Col. Robert Laughlin was the 8th Army Judge Advocate and responsible for the Yokohama trials. TIMOHY P. MAGA, JUDGMENT AT TOKYO: THE JAPANESE WAR CRIMES TRIALS 17 (University Press of Kentucjky 2001).



U.S. armed forces, compiled a detailed overview of Types of Atroc-ities alleged in B and C War Crimes Trials in connection with atrocities committed against POWs,68 which was divided into five main groups.69 JAG annalists compiled more than 260 charges. The nine-page list laid bare the scale of the incredible atrocities committed in Japanese POW camps. It remains hereto unverifi-able if all the facets of torture and murder were brought before the courts. Investigation documents from the Supreme Com-mander of the Allied Power (SCAP) turn attention to the fact that, at least in some regions, it may have only dealt with the tip of the iceberg.70

Tab. 2 Types of Atrocities alleged in B and C War Crimes Trials71

Types of

Atrocities Alleged

Number of Charg-

es

A. Killing prisoner(s) of war (bayoneting, poison-ing, beheading, shooting and strangling to death)

5

B. Forcing, compelling, requiring, ordering pris-oners of war to several acts

101

C. Mistreating and abusing prisoner(s) of war 118

D. Failing several conditions (such as food, hu-manity, care of health etc.)

29

E. Miscellaneous violations of laws of war (such as presenting false evidence against POW; false use of the Red Cross emblem; not giving correct information about POWs etc.)

16

The table above organizes the atrocities by types. Most of the charges are to be found in the atrocities categories B and C. In category B are misfeasances, which either directly or indirect-ly relate to water in about thirty percent of all the atrocities. In category C, different forms of torture that played a role in the U.S. Military Commission Trials are described, including water

68 Regulations, supra note 47, at App. 22. 69 See Table 2. 70 See SCAP investigation documents on torture, rape, murder and other atrocities in the Far East. National Archives RG 331, Records of SCAP, Boxes 106570. 71 National Archives RG 331, Records of SCAP, Box 9776, App. 1, #22.



7. Bodies of

water:

Pools,

Barrels, or

Large tanks

6. Hygiene

5. Water as a

weight

4. Snow and

ice

3. Food

2. Torture:

Forced water

consumption; Simulated

drowning;

Cold showers

1. Weather: Standing for

long periods in

wet weather with or without

clothes

Water

Tab. 3

torture. Across all categories there are over forty relevant cases, which correspond to seventeen percent of all charges. In the Far East war crimes trials, allegations of the illegitimate use of water indicate the concerted and strategic use of water as a means of torture.72 Water was used to affect various objectives. A system-atic analysis gives a general overview structured into seven cate-gories:

To begin, different forms of degradation and punishment were reported. There was evidence of victims being drenched with icy water or cold showers, being forced to stand for long pe-riods in cold water or rain in low temperatures, and ordered to hold up heavy buckets of water with outstretched arms.73 Often

72 See IMTFE JUDGEMENT, supra note 29, at 1001. 73 Regulations, supra note 47, at App. 22.



POWs and civilian victims did not have access to clean water or were denied basic standards of hygiene. It is well known that water was used to revive unconscious victims of torture and ex-hausted forced laborers.74 A particularly perfidious torture method was to pour large quantities of liquid into the stomach of the victim and suggest drowning.75 The records of the JAG and the trial transcripts show: 1) Water was a regular part of the course of torture; 2) The simulation of drowning was a prelimi-nary termination of a whole range of torture methods; and 3) Wa-ter as an instrument of torture is, with the exception of a few re-gions, available at all times and in unlimited quantities. For these reasons the use of water for punishment and as a method of torture is not new and has never been out of fashion. Fur-thermore, water is actually one of the oldest tools of torture. The water board technique dates back to the 1500s during the Italian Inquisition. A prisoner, who is bound and gagged, has wa-ter poured over him to make him think he is about to drown.76

Interrogation techniques use water to induce the sensation of drowning in the person being questioned.77 Initially, the tech-nique, now known as water cure, was known as water treat-ment or water torture.78 The phenomenon has also been de-fined as forced drowning and was first referred to in the New York Times on July 27, 1942.79 Later, the term water torture was used by the Washington Post on October 7, 1946, and the New York Times on September 6, 1945 as the Oriental water torture.80 Meanwhile, it has subsequently been called a simu-lated drowning technique known as waterboarding.

74 Id. 75 Id. 76 Maddy Sauer, Vic Walter, & Rich Esposito, History on an Interrogation Technique: Water Boarding, ABC News online, Nov. 29, 2005, available at http://abcnews.go. com/WNT/Investigation/story?id=1356870. 77 Regulations, supra note 47, at App. 22. 78 See Paul Kramer, The Water Cure: Debating Torture and Counterinsurgencya century ago, THE NEW YORKER, Feb. 25, 2008, available at http://www.newyorker.com/ reporting/2008/02/25/080225fa_fact_kramer (discussing water cure terminology); See also e.g., Yokohama Case No. 144, Review for JAG (Dec. 27, 1947, National Archives RG 311, Records of SCAP, Box 9512, Charge No. 1, Specification 3e. 79 See Isabel MacDonald, From Water Torture to Waterboarding, FAIR, June 14, 2008, available at http://www.fair.org/index.php?page=3404 (describing history of water torture terminology). 80 Id.; Other newspaper accounts unequivocally defined water treatment as a form of torture. Otto D. Tolischus, U.S. VICTIMS DETAIL JAPANESE TORTURE; Savagery by Police Reflects National Trait and Effect of 'Asia for Asiatics' Cry MISSIONARY, 68, BEATEN Woman Editor Slapped by Her InquisitorsWater Cure' Given Other Victims, N.Y. TIMES, Aug. 16, 1942, at 7, available at http://select.nytimes.com/gst/abstract.html? res=F30F10F93A58167B93C4A81783D85F468485F9&scp=5&sq=water+treatment+as+water+torture&st=p.



This also applies to so-called enhanced interrogation tech-niques.81 Its kind of awkward to argue, explains Paul Begala of the Huffington Post, that waterboarding is not a crime when you hanged someone for doing it to our troops. My precise words were: our country executed Japanese soldiers who waterboarded American POWs. We executed them for the same crime we are now committing ourselves.82 Evan Wallach cited the IMTFE trial records as follows:

There were two forms of water torture. In the first, the victim was

tied or held down on his back and cloth placed over his nose and

mouth. Water was then poured on the cloth. Interrogation proceeded

and the victim was beaten if he did not reply. As he opened his mouth

to breathe or answer questions, water went down his throat until he

could hold no more. Sometimes, he was then beaten over his distend-

ed stomach; sometimes Japanese jumped on his stomach, or some-

times pressed on it with a foot. In the second, the victim was tied

lengthways on a ladder face upwards, with a rung of the ladder across

his throat and head below the ladder. In this position he was slid first

into a tub of water and kept there until almost drowned. After being

revived, interrogation proceeded and he would be re-immersed.83

III. UNITED STATES WATER TORTURE CASES IN THE FAR EAST

After WWII, Allies convicted several Japanese soldiers for waterboarding POWs. In the Yokohama trials alone there are at least nineteen cases that deal with water torture. Below is a closer inspection of the specifics of each case. The central theme of each of these descriptions is that water torture or the water cure was not an exception, but was part of the daily routine of many POWs. Various aspects of water torture are evident in these cases.84

81 When asked by ABCs Jonathan Karl, whether the U.S. government should have had the option to use enhanced interrogation techniques, including waterboarding with Umar Farouk Abdulmuttalab, former Vice President Dick Cheney said, I think you ought to have all of those capabilities on the table. This Week Transcript: Former Vice Presi-dent Dick Cheney, ABC News, Feb. 14, 2010, available at http://abcnews.go.com/ ThisWeek/week-transcript-vice-president-dick-cheney/story?id=9818034. See generally MATTHEW LIPPMAN, CRIMINAL PROCEDURE 643-4 (SAGE Pub. 2011) (discussing enhanced interrogation techniques). 82 Paul Begala, Yes, National Review, We Did Execute Japanese for Waterboarding, THE HUFFINGTON POST, Apr. 24, 2009, available at http://www.huffingtonpost.com/paul-begala/yes-inational-reviewi-we_b_191153.html. 83 Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45 COLUM. J. TRANSNATL L. 468, 491 (2007); See also TRIAL OF SUMIDA HARUZO AND TWENTY OTHERS, THE DOUBLE TENTH TRIAL (Colin Sleeman & S.C. Silkin eds., Gryphon Editions, William Hodge and Co. 1951). Trial conducted at Singapore, 1946. 84 Yokohama cases, National Archives RG 331, Records of SCAP, #15Box 9495; #17Box 949; #35Box 9497; #38Box 9497; #53Box 9499; #135Box 9510; #136Box 951; #144Box 9512; #145Box 9512; #146Box 9512; #163 Box 9516; #175Box 9517;



A. Water Torture as Waterboarding

Initially, Kokuro POW Camp #3 in Fukuoka, Kyushu, Japan, was the focus of war crime jurisprudence. In Yokohama, Yoichi Rikitake was sentenced on February 22, 1946 for systematically torturing POWs and giving them the water cure.85 Torture in-volved beatings, which were administered with clubs as each prisoner was knocked to the ground several times. The water cure consisted of fastening a prisoner to a stretcher, then prop-ping the stretcher against a table so that the prisoners head was down and his feet extended toward the ceiling. Water would then be poured in the prisoners nostrils and mouth until he lost consciousness after which he would be revived and beaten fur-ther.86 Procurement of information was not the only aim of inter-rogations using water torture. Water torture was also em-ployed in attempts to extort money. In Yokohama, on May 14, 1944, the JAG charged Seizo Nagakura and others with beat[ing] and kick[ing] POW[s]. . .[and] forc[ing] water in their noses and mouths.87 In the following weeks, further perpetra-tors were accused of similar incidents and were subsequently sentenced as war criminals.88

Another U.S. military commission at Yokohama tried four Japanese defendants for torture and mistreatment of American and Allied prisoners at the Kokuro POW Camp.89 Water torture was among the acts alleged in the charges against the various de-fendants, and it loomed large in the evidence presented against them:

That the following member of the Imperial Japanese Army with his

then known title: Seitaro Hata, Surgeon First Lieutenant, at the times

and places set forth in the specifications hereto attached, and during a

time of war between the United States of America and its Allies and

Dependencies, and Japan, did violate the Laws and Customs of War.

[. . .] That in or about July or August 1943, at Fukoka Prisoner of War

Camp Number Three, Fukuokaken, Kyushu, Japan, the accused . . .

did willfully and unlawfully, brutally mistreat, abuse and torture

#184Box 9519; #227Box 9524; #237Box 9526; #259Box 9529; #266Box 9530; #272Box 9531; #327Box 9541. 85 Yokohama Case No. 15. Review of JAG (May 28, 1946), National Archives RG 331, Records of SCAP, Box 9495; see also Testimony of Armitage (Oct. 1, 1945), National Ar-chives RG 331, Records of SCAP, Box 9495, exhibit 39. 86 Id. 87 Yokohama Case No. 35, Review of JAG (July 15, 1946), National Archives RG 331, Records of SCAP, Box 9497 at 23. 88 Yokohama Case No. 38, National Archives RG 331, Records of SCAP, Box 9497; Yokahama Case No. 53, National Archives RG 331, Records of SCAP, Box 9499. 89 Yokohama Case No. 53, (Masumoto, Yoshitaro; Habe, Toshitaro; Tenabe, Tadao; Terashita, Yoichiro), National Archives RG 331, Records of SCAP, Box 9499.



Morris O. Killough, an American Prisoner of War, by beating and

kicking him and by fastening him on a stretcher and pouring water up

his nostrils. . . . That on or about 15 May 1944, at Fukoka Prisoner of

War Camp Number Three . . . the accused Seitaro Hata, did, wilfully

and unlawfully, brutally mistreat and torture Thomas B. Armitage,

William O Cash and Munroe Dave Woodall, American Prisoners of

War by beating and kicking them; by forcing water into their mouths

and noses; and by pressing lighted cigarettes against [their bodies].90

Vetales V. Anderson, a U.S. witness, described the atrocities against American POWs in his affidavit dated October 20, 1945:

While American medical officers, we were detained by Japanese as

prisoners of war at Fukuora, Camp #3, Japan, from March 1944 to 13

September 1945, and while at this camp we witnessed the severe beat-

ing in May of 1944 of Pfc. Woodall. . . . [He] was suffering from a very

severe case of beri-beri[91] and had just been released from the camp

hospital. He had stolen a shirt from the Japanese and was punished

in the following manner. He was stretched and tied on a hospital

stretcher and severely beaten. He was turned upside down and water

poured up his nose and beaten again into unconsciousness. This

treatment lasted for about four hours . . . William Cash, an American

civilian prisoner, was given the identical treatment for the same of-

fence.92

The victim himself stated on October 1, 1945:

About 15 May 1943 some clothes were stolen from an empty barracks

at Camp #3 Yawata where the Japanese had stored them. One of the

civilian American prisoners who worked with me . . . was seen wear-

ing a pair of trousers which had been stolen. So he, another prison-

er . . . and myself were beaten and tortured by the Japs in an effort to

discover where the other missing clothes had been disposed of. I was

taken to an empty barracks . . . . When we refused to tell them any-

thing about the missing clothes . . . I was beaten . . . with a club about

five feet long and two inches square. I received about ten or fifteen

blows across the back and was knocked down to the floor several

times. After beating me for a while they would lash me to a stretcher

then prop me up against a table with my head down. They then would

pour about two gallons of water from a pitcher into my nose and

mouth until I lost consciousness. When I was revived they would re-

90 Yokohama Case No. 53, Military Commission Order No. 356 (Nov. 6, 1948), Na-tional Archives RG 331, Records of SCAP, Box 9499. 91 Beriberi is a nervous system ailment caused by a deficiency of vitamin B1 in the diet. Vitamin B1 occurs naturally in unrefined cereals and fresh foodparticularly whole grain products, fresh meat, green vegetables, fruit, and milk. These were food products, which mostly were not available for POW and civil internees. See Neil McIntyre & Nigel Stanley, Cardiac Beriberi: Two Modes of Presentation, 3 BRITISH MEDICAL J. 567569 (1971). 92 Yokohama Case No. 53, National Archives RG 331, Records of SCAP, Box 9499, Prosecution exhibit 6.



peat the beatings and water cure. . . . The tortures and beatings con-tinued for about six hours. We were taken back to our barracks but in

a few minutes they returned and took us back for about another hour

of beating.93

The overwhelming majority of cases detailed hereto deal with crimes committed in Japanese POW camps. The trial of Kap Ching Song, a detective with the Korean Provincial Police gives specific evidence.94 The victims were U.S. clergymen who were detained as POWs by the Korean police when the United States entered the war on December 8, 1941. On December 13, 1941, Edward H. Miller was removed from the internment camp and taken to the Yongsan Police Station for interrogation. Kap Chin Song and other Japanese Police officers interrogated Miller and accused him of being an American spy.95 He was subse-quently interrogated at irregular intervals until May 1942. Dur-ing many of the interrogations Miller was severely beaten with a rubber hose by Kap Chin Song, and in mid-January the accused subjected him to the water cure treatment.96 In his interroga-tion transcript from August 22, 1947, Miller describes in detail his time in Yongsan Police Station as follows:

On the day that I received my water cure, Mr. So[ng] was particularly

nasty in his conduct of the interrogation, and after repeated attempts

to get me to confess to being a spy, ordered me to remove my coat. . . .

I was then laid on my back with my knees drawn up on my chest and

my hands under me. Several buckets of water were brought in and

transferred on at a time to a tea kettle which was the instrument used

to pour the water into my face and particularly into my nose. This

produced a drowning sensation or a strangling sensation. After each

bucket was emptied in this manner, I was asked by So[ng] to confess,

where upon I reiterated my innocence and tried to explain that I was

not a spy. This had no effect on So[ng] and he proceeded with the next

bucket of water.97

Presbyterian missionaries Ralph O. Reiner and Dr. Edwin Wade Koons suffered the same fate. They were also tortured on several occasions by Kap Chin Song.98 The accused did not deny having tortured all three using, inter alia, the water cure. In his defense, he claimed he merely acted on the orders of his supe-riors. That he participated in said events only because he was

93 Id. at exhibit 7. 94 Yokohama Case No. 272, Review to JAG (Oct. 14, 1948), National Archives RG 331, Records of SCAP, Box 9531. 95 Id. 96 Id. 97 Id. at Prosecution exhibit 1. 98 All three were released on May 25, 1942 and returned to the United States a few days later.



ordered to do so by superior authorities and if he failed to do so he would have been arrested by the Kempei Tai.99 The prosecut-ing body did not consider this a valid defense strategy. The ac-cused is an educated man, having attended Kyoto University[,] and should be held strictly accountable for his barbarous deeds.100 He was sentenced to ten years hard labor.

Such cases are not uncommon today. For example, during the debate regarding the military commissions legislation on September 28, 2006, Senator Edward Kennedy said to his col-leagues, Asano was sentenced to 15 years of hard labor. We punished people with 15 years of hard labor when waterboarding was used against Americans in World War II.101 Besides the Yokohama cases, waterboarding cases have also been document-ed in the Philippines. A witness for the prosecution, Pedro del Mundo, confirmed this form of torture in his examination before the court. He described it as follows: The handkerchief was placed on my face and then Yuki held me by the hair and they poured water over my face.102 Later in the course of the interro-gation it became obvious that the water cure was part of an en-tire succession of tortures, as in so many other cases. The United States military commission convicted Yuki as a non-combatant war criminal, and sentenced him to life imprisonment.

In the last trial that was opened in Manila, against Yuki Chinasaku on March 24, 1947, witness Roman Lavarro gave a detailed description of what befell him:

A[nswer]: When Yuki could not get anything out of me he wanted the

interpreter to place me down below and I was told by Yuki to take off

all my clothes so what I did was to take off my clothes as he ordered. I

was ordered to lay on a bench and Yuki tied my feet, hands and neck

to that bench lying with my face upward. After I was tied to the bench

Yuki placed some cloth on my face and then with water from the fau-

cet they poured on me until I became unconscious. He repeated that

four or five times.

Q[uestion by Colonel Keesly103]: You mean he brought water and

poured water down your throat?

99 Yokohama Case No. 272, Review to JAG (Oct. 14, 1948), National Archives RG 331, Records of SCAP, Box 9531. 100 Id. 101 Walter Pincus, Waterboarding Historically Controversial: In 1947, the U.S. Called It a War Crime; in 1968, It Reportedly Caused an Investigation, WASH. POST, Oct. 5, 2006, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/10/04/AR200610 0402005.html. 102 Trial record of U.S. v. Yuki (Mar. 24, 1947), National Archives RG 331, Records of SCAP, Box 1586 at 103. 103 A representative of the prosecuting body.



A: No sir, on my face, until I became unconscious. We were lying that

way with some cloth on my face and then Yuki poured water in my

face continuously.

Q: And you couldnt breathe?

A: No, I could not and so I for a time lost consciousness. I found my

consciousness came back again and found Yuki was sitting on my

stomach and then I vomited the water from my stomach and the con-

sciousness again came back for me. . . .

Q: Describe what they did the second time in detail?

A: I was again placed on the bench, feet, hands and neck tied to the

bench and a piece of cloth was placed on my face and then they poured

water on my face until I became unconscious.

Q: When that water was poured on you, was it forced into your mouth?

A: Sometimes it goes to my mouth, sometimes to my nose. Two open-

ings. I cant hardly breath[e]. . . .

Q: Was it painful?

A: Not so painful, but one becomes unconscious. Like drowning in the

water. . . .

Q: How many times did he do that?

A: Two or three times.104

B. Ingestion of Sea Water

Five miles from Nagasaki lay Fukuoka, another Japanese POW Camp. The first British and Dutch POWs arrived there in October 1942. A report compiled at the end of the war described the condition of the camp as follows:

The prisoners were forced to work under any weather conditions alt-

hough inadequately clothed and under nourished. Fever in excess of

102 was the only excuse for release from work provided the prisoners

could move around. Beatings were numerous and 2 guards named

Hancho and Estaki were particularly cruel. To illustrate[,] a civilian

about 50 years of age . . . who refused to work on account of sickness

was beaten into unconsciousness with clubs on 3 occasions during the

same day. The guards would revive him by the inhuman water treat-

ment, and the beatings would be renewed. The prisoner died the

same day as a direct result of this treatment. . . . In this camp, as in

the most of the other Japanese prison camps, the prisoners, through

malnutrition were suffering from beriberi, dysentery, diarrhea and

general debility.105

104 Supra note 101 at 85, 8788; See also Review and Recommendation (Aug. 4 1947), National Archives RG 331, Records of SCAP, Box 1586 at 7. 105 The [Gibbs] report was prepared post-war based upon assorted prisoner affidavits and, apparently, on the reports of the International Red Cross representatives in Japan



In April 1947 Yagoheiji Iwata was sentenced for water tor-ture, among other things. In September 1943, the Dutch POW Peters was accused of stealing and was subsequently abused. His head was pulled backwards and a towel was placed over the mouth of the Prisoner of War and water [was] poured on the tow-el, then he was tied up.106 Johannas J. Budding was witness to the torture:

After [beating Peters] they let him down again [. . .] and Iwata told a

few soldiers to hold Peters head backwards. Then he told another soldier to put a piece of cloth over his mouth and ordered another sol-

dier again, to fetch a bucket of sea water. There were five buckets

which were standing on a special tank in case of fire. At that point

the Japanese sick bay attendant, who was present at the moment, and

who expected what was going on, intervened. He told him, to Ser-

geant Iwata, that it is dangerous because it is sea water and the man

will get sick. At that moment Sergeant Iwata said Let him die. Fur-ther, the soldiers lifted the buckets and Iwata assisted in pouring the

sea water over Peters face. On account of the piece of cloth over his

mouth, his nose was closed so he was forced to swallow the sea water

causing a swollen belly.107

Torture served as a punishment in this case and not as a method of interrogation.

C. Forced Ingestion of Water

Another variation of water torture in a POW camp is de-scribed in Yokohama Case No. 136 of April 29, 1947:

That at diverse times between 15 May 1943 and 20 March 1944 at

Headquarters Prisoner of War Camp, Osaka Area, Honshu, Japan,

the accused Masatoshi Sawamura, did willfully and unlawfully mis-

treat Corporal William L. Dorman, an Australian Prisoner of War, by

beating him; by throwing a bucket of ice cold water over him in cold

weather; by forcing large quantities of water into his mouth and nose

by means of a hose, and by otherwise abusing him.108

Other Allied POWs were also subjected to this fate. At least fifteen more victims were mentioned in a review for the JAG. Further cases concerning this camp suggest that water torture was in permanent use, sometimes lasting several hours.

who were notorious for their bias in favour of the Japanese. Available at http://www.mansell.com/pow_resources/camplists/fukuoka/fuku_2/fuku_2_gibbs_report. html. 106 Yokohama Case No. 135, Review for JAG (Sep. 17, 1948), National Archives RG 331, Records of SCAP, Box 9510. 107 Wallach, supra note 82. 108 Yokohama Case No. 136, Review for JAG (Dec. 11, 1948), National Archives RG 331, Records of SCAP, Box 9511.



Sawamura then poured water down Taylors mouth until it ran out of his nose. Then he reversed the method and poured water down Taylors nose.109

D. Clysters

Alongside the previously described war crimes, prisoners were also tortured with clysters: Finally, they put a hose in his rectum and pumped water until he became unconscious.110 Cor-poral Sawamura was recognized as one of the most barbarous camp wardens in Osaka Headquarters Prisoner of War Camp.

E. Command Responsibility111

In addition to the torturers, their superiors were also before the courts.112 Yoshitaro Masumoto was prosecuted for failing to put a stop to the worst atrocities and mandating water treatment in the Osaka POW camp.113 After the war, a survivor said for the records:

While I was in Osaka . . . on or on about 1 September 1944, I was giv-

en the so-called water treatment along with thirteen other soldiers.

Eleven of these soldiers were American and the other two were British

soldiers. . . . A hose was put in my mouth and the water turned on.

The next I knew I had passed out and become conscious again and we

were all being pounded and beaten.114

This particular torture was mandated as a punishment for the theft of soybeans, which the POW then hid in his shoes.

In another case tried by a U.S. military commission in Yoko-hama in February 1946, Shigeru Aona, a physician, was charged

109 Yokohama Case No. 146, Review for JAG (Apr. 5, 1947), National Archives RG 331, Records of SCAP, Box 9512, charge 1, specification 21f. 110 Yokohama Case No. 136, supra note 107 at charge 1, specification 8. 111 See Howard Levie, Command Resposibility, 8 U.S. A.F. ACAD. J. LEGAL STUD. 1 (1998), available at www.usafa.edu/df/dfl/documents/commresp.doc; Sherrie Russel-Brown, The Last Line of Defence: The Doctrine of Command Responsibility and Gender Crimes in Armed Conflict, 22 WIS. INT'L L.J. 125 (2004). Theatre Judge Advocate, in a Review of the Yamashita Case, stated The doctrine that it is the duty of a commander to control his troops is as old as military organisation [sic] itself and the failure to discharge such duty has long been regarded as a violation of the Laws of War. . . . But since the duty rests on a commander to protect by every means in his power the civil population and prisoners of war from wrongful acts of his command . . . there is now reason, either in law or morality, why he should not be held criminally responsible for permitting such viola-tions by his subordinates. National Archives RG 331, Records of SCAP, Box 1284. 112 Yamashita, Medina and Beyond: Command Responsibility in Contemporary Mili-tary Operations, 164 MIL. L. REV. 155 (June 2000). 113 Yokohama Case No. 144. Review for JAG (Dec. 27, 1947), National Archives RG 331, Records of SCAP, Box 9512, charge 1, specification 3e. 114 Yokohama Case No. 144, Testimony of Lowren A. Arnett (Jan. 4, 1946), National Archives RG 331, Records of SCAP, Box 9512, prosecution exhibit 19.



with permitting his staff to commit cruel and brutal atrocities against Allied POWs.115 Aona argued that the prisoners were in poor condition upon arriving at the camp, and denied any abuse or mistreatment. He also claimed that he was not responsible for the actions of soldiers of lower rank, which he claimed were the responsibility of the camp commander. It was determined that Aona had authority to restrict the behavior of subordinates, and did restrict their behavior occasionally. However, the prosecu-tion introduced several statements by former prisoners indicat-ing that the accused failed to supervise, control and restrain the members of his medical staff and permitted them to mistreat POWs. Aona was found guilty under command responsibility, and was sentenced to ten years of hard labor.116

Likewise, Ryohei Tanka was brought before the court be-cause of his command responsibility.117 One of the most compre-hensive trials took place from March 24 to April 23, 1948 against General Ichiro Morimoto in Yokohama. He was the commanding officer responsible for the POW Camp Nueva Eciji located at Lu-zon in the Philippine Islands. He faced over 100 charges, includ-ing water torture. Subsequently, he was sentenced to 20 years hard labor.118 However, he was released on December 31, 1955, having served less than half of his sentence.119

F. False Confession120

Another significant case was United States v. Sawada, a mil-itary commission held on April 15, 1946 in Shanghai, China. The charges did not deal directly with water torture. Lieutenant General Tsuneo Sawada and three co-defendants121 were charged

115 Yokohama Case No. 9, Review to the JAG (June 26, 1946), National Archives RG 331, Records of SCAP, Box 9494, Charge 1, Specification 1. 116 Id. 117 Yokohama Case No. 145, Review for JAG (Apr. 12, 1949), National Archives RG 331, Records of SCAP, Box 9512. 118 Yokohama Case No. 266, Military Commission Orders #649 (Mar. 30, 1949), Na-tional Archives RG 331, Records of SCAP, Box 9530. 119 Yokohama Case No. 266, Case dockets of Far East war crimes trials, National Archives RG 153, Records of SCAP, entry 1021 Box 1 at 55. 120 See: Richard Conti (1999), The Psychology of False Confessions, 2 J. CREDIBILITY ASSESSMENT & WITNESS PSYCH. 14 (1999); The truth about false confessions, CRIMINAL BAR QUARTERLY (March 2009), available at http://www. criminalbar.com/83/records/29/CBQ%201-09%20v6.pdf?form_83.userid=1&form_83.replyi ds=29; Howard Terell & William Logan, The False Confession: Manipulative interroga-tion of the Mentally Disordered Criminal Suspect, 13 Am. J. Forensic Psychiatry 29 (1992). 121 Ryuhei Okada and Yusei Wako were both members of a Japanese Military Tribu-nal, and Sotojiro Tatsura was warden at the Kiangwan Military Prison in Shanghai. Mili-tary Orders 3, 4, and 5 from (Aug. 24, 1946), National Archives RG 153, Records of SCAP, entry 138 Box 2.



with causing American POWs to be denied the status of POW and were tried and sentenced by a Japanese Military Tribunal in violation of the Laws and Customs of War. The specifications al-leged

[t]hat on or about the month of August 1942, at Shanghai . . . as

Commanding General of the Japanese Imperial 13th Expeditionary

Army in China[, Sawada] did knowingly and willfully constitute and

appoint a Japanese Military Tribunal and did direct the said . . .

[t]ribunal appointed by him as aforesaid to try by court-martial . . . on

false and fraudulent charges[,]. . . . [a]nd did sentence . . . Military

Person[nel] to death all under the authority [of his official capacity as

Commanding General].122

The victims were tortured with water torture and this torture resulted in a wrongful conviction.123 At the trial of his captors, Lt. Chase J. Nielsen, one of the 1942 Army Air Force officers who flew in the Doolittle Raid and was captured by the Japanese, tes-tified: I was given several types of torture. . . . I was given what they call the water cure. He was asked what he felt when the Japanese soldiers poured the water. Well, I felt more or less like I was drowning, he replied, just gasping between life and death.124 On October 14, 1942, three of the accused crewmen were advised that they were to be executed the next day. On Oc-tober 15, 1942, they were taken to a public cemetery outside of Shanghai and executed by shooting.125 The U.S. military com-mission accepted, in April 1946, that they were false and fraudu-lent charges, based on torture.126 Sawada was sentenced to five years hard labor.127

The United States was not alone in prosecuting water tor-ture before tribunals, nor were the Japanese the sole practition-ers of water torture.128 For example, Australia and the United Kingdom prosecuted Japanese who had been accused of tor-ture.129 The British Military Court charged Matsunobu with

122 Military Order No. 2 (Aug. 24, 1946), National Archives, NARA RG 153 Entry 138 Box 2. 123 Id. 124 Wallach, Op-Ed., supra note 9. 125 Military Order No. 2, supra note 122. 126 See Wallach, supra note 83, at 48082; Members of the military commission in-cluded Rear Admiral A.G. Robinson, President of the court, Lt.Col. V.J. Garbarino, Lt.Com. B.W. Lee, and Lt.Col. H.K. Roscode. Military Order No. 2, supra note 122. 127 Id. 128 It is worth comparing those trials with Norways prosecution of German defend-ants for the same form of misconduct. See UNITED NATIONS WAR CRIMES COMMISSION: LAW REPORTS OF TRIALS OF WAR CRIMINALS 1-14 (His Majesty's Stationary Office Vol XIV 1949). 129 More than 50 British cases were held in Alor Star (Malaysia), Hong Kong, Ipoh (Malaysia), Kajang (Malaysia), Kuala Gangsar (Malaysia), Kuala Lumpur (Malaysia), La-



eight years imprisonment for the commission of torture in Hong Kong on August 1, 1946.130

CONCLUSION

In terms of the debate which has arisen with regard to wa-terboarding and the question of whether it is a method of torture or a method of interrogation, United States legal practices in the Far East following WWII give a very clear assertion: waterboard-ing is torture. Thus, it is presently not a permissible method of interrogation when a non-totalitarian state uses it.

Both international and domestic law prohibits the use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind as an aid to interrogation. It is evident upon analysis of examples from the United States war crimes trial programs in the Far East that Japans use of water torture throughout WWII was a common occurrence. Moreover, many Japanese were convicted for water torture crimes between 1946 and 1949. Given that comparable acts are now judged to be legal fifty years later raises questions about the consistency of the principles of the rule of law. A comparison with current international criminal law should point to legal con-tinuity since the beginning of the 20th century, however, this is not the case.

The sentences for ill treatment imposed on the Japanese were often harsh, and included such punishments as hanging or shooting. With regard to the historical prosecution of water tor-ture, Evan Wallach rather pointedly states, [i]n all cases, whether the water cure was applied by Americans, to Americans, or simply reviewed by American courts, it has uniformly been re-jected as illegal; often with severely punitive results for the per-petrators.131 As this note demonstrates, military judges in the Far East following WWII were of the belief that the method was one of the most inhumane forms of barbarism ever devised. Fur-ther, it can be ascertained that the United States itself provides a historic example for the legal prosecution of atrocities, amongst them and in first place, torture methods using waterregardless of the name it is givento achieve simulated drowning. This can be proven using an international yardstick both within the Unit-ed States and in the Far East following WWII. Other states fol-

buan (Papua New Guinea), Rangoon (Burma) and Singapore.Database ICWC, Marburg, Germany. 130 The National Archives Kew, London RG WO 235/894. 131 Wallach, supra note 83, at 477.



lowed suit with the United States. A unified stance on the prose-cution of torture as a war crime must find its place in interna-tional criminal law.

The United States, along with other allied powers prosecut-ing war crimes trials in the Far East following WWII, show that the prosecution of water torture (including waterboarding) is common lawbased on the principle that it is unfair to treat sim-ilar facts disparately on different occasions. Moreover, torture characterized by intent is distinguished by its general prohibi-tion. It is notable that the questions pertaining to enhanced in-terrogation methods were raised following 9/11. Statements made by supporters of enhanced interrogation methods tend to emphasize the need for such measures in light of the War on Ter-ror. The question is: may hitherto recognized boundaries be overstepped, particularly bearing in mind that the United States prosecuted waterboarding until the end of the last millennium (as evidenced by meta-studies).132 When comparable actions are dealt with unequally because of who the aggressor is, various ex-amples have made it obvious that it is fatal to the rule of law. Even though there are those who advocate for waterboarding on the grounds that it is an investigative tactic and should not be considered to be torture, it remains an inhuman method of inter-rogation, and must not be allowed to erode the foundations of the Convention against Torture and other Cruel, Inhuman or De-grading Treatment or Punishment.

132 Desai et al., supra note 1.

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