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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 momentum in recent years, particularly in the United States in connection with the activities of the CIA during the recent war on terror.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 depicting 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 PostWar 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, waterboarding 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 waterboarding, in 1931, and remained generally consistent until another dramatic
shift, in 2004. [] From 1931 to 1999, NY Times journalists called waterboarding 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 treatment 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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prisoner of wars (POW) cloth-covered face.3 References to criminal prosecutions of waterboarding in military courts appeared by
the Spanish-American War, at the beginning of the 20th Century, when U.S. Army Major Edwin Glenn was sentenced for using
the water cure.4 Recently there have been an increasing number of reports on the use of torture by U.S. government agencies
during prisoner interrogations.5 Former CIA agent John Kiriakou said in an interview with ABC News that subjecting prisoners 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 information that was allegedly used to prevent an entire string of terrorist 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 characterize the practice as simulated drowning. Thats incorrect. To be effective, 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 AmericanPhilippine 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-aidessay-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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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 particularly 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-nomarks.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, David 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 different (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. Waterboarding is a technique that has been routinely used in the training of some
U.S. military personneland which the journalist Christopher Hitchens endured. 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 waterboarding 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, according to Michael Hayden, President Bushs last CIA director, and former Attorney General Michael Mukaseyand of those, fewer than one-third were subjected 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-andenhanced-interrogation-techniques-15125.

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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 torture. 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 applied to American servicemen, and voted to convict the perpetrators.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 government is immune from this. It is a question of whether it is
tolerated, supported, or even required, thereby becoming a strategywhich is a massive contravention of the international conventions. 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 analyzing and comparing them with known cases of waterboarding
by means of case studies. This article will prove that the criminal prosecutions by American military specifically included waterboarding. Rather than an outlier in isolated cases, waterboarding 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 stomach 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 Surrender, 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 October of 1943, took center stage in this effort. In view of the increasingly large number of war crimes committed by the Japanese in the Far East and the need for early investigation and exexamination, 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 representative submitted a formal proposal to establish a Far Eastern SubCommission. 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 commissioned 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 assumed that each prosecution would require the prior authorization of the Allied Headquarters, UNWCC, or national administration.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 Commission, 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 SubCommission 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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Chairman of the UNWCC, reported that only the cases concerning 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 Respecting the Laws and Customs of War on Land, which provided for
humane treatment of POWs and condemned treacherous and inhumane conduct of war, Japanese war policy tolerated illtreatment 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 Representative, 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, APAUniversity 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. (Garland Publishing 1981-87).
26 See D.C.S. Sissons, The Australian War Crimes Trials And Investigations (194251) 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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Emperor.30 In this spirit, it was an ignominy for Japanese soldiers 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 honourably [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 instructions to chiefs of POW camps stating that [i]n Japan we have
our own ideology concerning prisoners of war, which should naturally 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 prisoners and internees by prohibiting the representatives of the Protecting Power from visiting camps, by restricting such visits as were allowed, 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 incriminating 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 prevailed 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 torture 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
31
32
33
34
35

IMTFE JUDGEMENT, supra note 29.

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

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

water out. The usual practice was to revive the victim and successively 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 commissions after WWII as not being a court or part of the judicial system.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 oc36 Id. at 1057-59 (The Japanese Military Police and the Kempeitai (the Japanese Gestapo), 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; Sumatra, at Medan, Tadjong Karang and Palembang; Java, at Batavia, Bandung, Soerabaja and Buitenzong; Celebes, at Makassar; Portuguese Timor, 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 commissions in the Far East has been vested in the Commanding General of each Army); Activities 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 Program, 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 [hereinafter 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 Additionally, a war crime tried by a military commission does not apply American law; it applies the international law relating to the
law of warfare, either law made by treaties or law created by international 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, persons, 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 continued 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-

Madsen v. Kinsella, 343 U.S. 341, 345 (1952).

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 Commission, 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 treatment 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.
40
41

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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 purpose 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 adjudicated by the United States military commissions.49 In addition to
the aforementioned crimes, murder, extermination, enslavement,
deportation, or other inhuman acts committed against any civilian population, or persecution on political, racial, national or religious 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 conspiracy.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), National 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 microfilm 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 Duenas, was held in Agana, Guam on Dec. 2829, 1944. National Archives Microfilm Collection C-72, roll 1, No. 117.509.
54 Database ICWC, Marburg, (Germany). See table WWII US Military CommissionsFar East.

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1944 in Agana, Guam.55 The last military commission in Yokohama, 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
Unknown
Agana (Guam)
Kwajalein Atoll
(Marshall Islands,
US)
Manila (Philippines)
Marianas Islands
(Guam)
Samar (Philippines)
Shanghai (China)
Tokyo (Japan)
Yokohama (Japan)
US Supreme Court,
Washington DC
Total

Cases
10

Accused
10

Date

24
2

26
15

12/28/1944 02/18/1946
11/21/1945 12/19/1945

42
23

110
95

10/29/1945 04/15/1947
06/03/1946 04/28/1949

1
12
2
332
1

1
73
2
1059
1

07/19/1945
01/24/1946 09/16/1946
10/29/1948 02/23/1949
12/18/1945 10/03/1949
04/02/1946

449

1392

The trials dealt with the maltreatment of U.S. and Allied

POWs. However, there were also civilians from Japanese occupied territories amongst the victims.59 The perpetrators were not
just Japanese; Koreans often came before the U.S. military commissions, particularly for acting as watchmen. Furthermore,
National Archives Microfilm Collection C-72, roll 1.
National Archives RG 153, entry 1021, Box 1Far East Trials.
57 Tabulation of evidence, Regulations governing the Trials of Accused War Criminals (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 IlangIlang, 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 Japan, wrongfully and unlawfully kill Mrs. Iligan and her three children, all unarmed, noncombatant 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 (citing U.S. v. Ishiguro et. al).
55
56

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some residents of Japanese occupied territories were tried as collaborators.60 Twenty collaborators were accused in a total of sixteen cases.61 Amongst them, thirteen were found guilty, five persons 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 documents 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 reflect 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 Microfilm Collection M 1112, roll 4; Yokohama, Case 290 (Aug. 27, 1949, macroformed on national Archive Records, NARA M 1112, roll 4 (The list is missing Chiuma, Sazae Yokohama 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 references 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 captivity. 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 Atrocities 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 unverifiable if all the facets of torture and murder were brought before
the courts. Investigation documents from the Supreme Commander 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 Charges

A. Killing prisoner(s) of war (bayoneting, poisoning, beheading, shooting and strangling to

death)

B. Forcing, compelling, requiring, ordering prisoners of war to several acts

101

C. Mistreating and abusing prisoner(s) of war

118

D. Failing several conditions (such as food, humanity, 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 indirectly 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
Regulations, supra note 47, at App. 22.
See Table 2.
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.
68
69
70

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Tab. 3

7. Bodies of
water:
Pools,
Barrels, or
Large tanks

1. Weather:
Standing for
long periods in
wet weather
with or without
clothes

2. Torture:
Forced water
consumption;
Simulated
drowning;
Cold showers

Water
3. Food

6. Hygiene

5. Water as a
weight

4. Snow and
ice

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 systematic analysis gives a general overview structured into seven categories:
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 periods in cold water or rain in low temperatures, and ordered to
hold up heavy buckets of water with outstretched arms.73 Often

72
73

See IMTFE JUDGEMENT, supra note 29, at 1001.

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 exhausted 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 preliminary termination of a whole range of torture methods; and 3) Water as an instrument of torture is, with the exception of a few regions, 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. Furthermore, 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 water 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 technique, now known as water cure, was known as water treatment or water torture.78 The phenomenon has also been defined 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 simulated drowning technique known as waterboarding.
Id.
Id.
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+w
ater+torture&st=p.
74
75
76

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This also applies to so-called enhanced interrogation techniques.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 distended stomach; sometimes Japanese jumped on his stomach, or sometimes 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 President 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/paulbegala/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 involved 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 propping 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 further.86 Procurement of information was not the only aim of interrogations using water torture. Water torture was also employed 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 perpetrators 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 defendants, 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; #272
Box 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 Archives 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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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 beating 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 offence.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 wearing a pair of trousers which had been stolen. So he, another prisoner . . . 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 anything 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), National 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 continued 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 subsequently interrogated at irregular intervals until May 1942. During 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 interrogation 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 superiors. That he participated in said events only because he was
Id. at exhibit 7.
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.
93
94

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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 prosecuting body did not consider this a valid defense strategy. The accused 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 colleagues, 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 documented 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 interrogation it became obvious that the water cure was part of an entire 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 faucet 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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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 consciousness 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 openings. 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 although 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 treatment, 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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In April 1947 Yagoheiji Iwata was sentenced for water torture, 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 towel, 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 soldier 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 Sergeant 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. Further, 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 described 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 mistreat 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 Corporal 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 given 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 Yokohama 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 RusselBrown, 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 violations by his subordinates. National Archives RG 331, Records of SCAP, Box 1284.
112 Yamashita, Medina and Beyond: Command Responsibility in Contemporary Military 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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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 prosecution introduced several statements by former prisoners indicating 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 because of his command responsibility.117 One of the most comprehensive 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 Luzon in the Philippine Islands. He faced over 100 charges, including 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 military 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), National 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 interrogation 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 Tribunal, and Sotojiro Tatsura was warden at the Kiangwan Military Prison in Shanghai. Military 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 alleged
[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, testified: 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 October 15, 1942, they were taken to a public cemetery outside of
Shanghai and executed by shooting.125 The U.S. military commission accepted, in April 1946, that they were false and fraudulent charges, based on torture.126 Sawada was sentenced to five
years hard labor.127
The United States was not alone in prosecuting water torture before tribunals, nor were the Japanese the sole practitioners of water torture.128 For example, Australia and the United
Kingdom prosecuted Japanese who had been accused of torture.129 The British Military Court charged Matsunobu with
122

Box 2.

Military Order No. 2 (Aug. 24, 1946), National Archives, NARA RG 153 Entry 138

Id.
Wallach, Op-Ed., supra note 9.
Military Order No. 2, supra note 122.
See Wallach, supra note 83, at 48082; Members of the military commission included 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 defendants 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), La123
124
125
126

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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 waterboarding 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: waterboarding 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 continuity 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 torture, 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 rejected as illegal; often with severely punitive results for the perpetrators.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. Further, 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 United 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 prosecution of torture as a war crime must find its place in international criminal law.
The United States, along with other allied powers prosecuting 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 similar facts disparately on different occasions. Moreover, torture
characterized by intent is distinguished by its general prohibition. It is notable that the questions pertaining to enhanced interrogation 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 Terror. 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 examples 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 interrogation, and must not be allowed to erode the foundations of the
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

132

Desai et al., supra note 1.

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