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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.
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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.
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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.
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250 Chapman Journal of Criminal Justice [Vol. 2:1
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).
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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.
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252 Chapman Journal of Criminal Justice [Vol. 2:1
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.
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2011] Charging Waterboarding As a War Crime 253
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.
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254 Chapman Journal of Criminal Justice [Vol. 2:1
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).
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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.
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256 Chapman Journal of Criminal Justice [Vol. 2:1
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.
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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).
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258 Chapman Journal of Criminal Justice [Vol. 2:1
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).
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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.
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260 Chapman Journal of Criminal Justice [Vol. 2:1
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.
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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.
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262 Chapman Journal of Criminal Justice [Vol. 2:1
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;
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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.
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264 Chapman Journal of Criminal Justice [Vol. 2:1
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.
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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.
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266 Chapman Journal of Criminal Justice [Vol. 2:1
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.
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2011] Charging Waterboarding As a War Crime 267
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
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268 Chapman Journal of Criminal Justice [Vol. 2:1
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.
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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.
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270 Chapman Journal of Criminal Justice [Vol. 2:1
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.
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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-
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272 Chapman Journal of Criminal Justice [Vol. 2:1
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.
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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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