Jehangir Hussain :
At the International Military Tribunal for the Far East in the trial of Japanes war crimes committed during the Second World War, Justice Radhabinod Pal gave dissenting verdict insisting that all the defendants were not guilty. Pal was highly critical of the prosecution’s use of the legal concept of conspiracy in the context of pre-war decisions by Japanese officials. He also maintained that the tribunal should not retrospectively apply (nulla poena sine lege) the new concept of Class A war crimes – waging aggressive (also known as crimes against peace) – and crimes against humanity that had already been used ex post facto at the Nuremberg Trials).
In 1946, Radhabinod Pal was appointed as one of the judges in the International Military Tribunal for the Far East, for the trial of the war crimes committed by Japanese army during the Second World War. The other judges were from 10 other countries.
Pal dissented from the tribunal’s verdicts of guilt in the cases of defendants charged with Class A war crimes. His reasoning also influenced the judges representing the Netherlands and France, and all three of these judges issued dissenting options. However, under the rules of the tribunal, all verdicts and sentences were decided by a majority of the presiding judges.
While finding that ‘the evidence is still overwhelming that atrocities were perpetrated by the members of the Japanese armed forces against the civilian population of some of the territories occupied by them as also against the prisoners of war’, he produced a judgment questioning the legitimacy of the tribunal and its rulings. He held the view that the legitimacy of the tribunal was suspect and questionable, because the spirit of retribution, and not impartial justice, was the underlying criterion for passing the judgment.
However he argued that the United States had clearly provoked the war with Japan and expected Japan to act. He argued that “Even contemporary historians could think that ‘as for the present war, the Principality of Monaco, the Grand Duchy of Luxembourg, would have taken up arms against the United States on receipt of such a note (Hull note) as the State Department sent the Japanese Government on the eve of Pearl Harbour’.
He also noted, ‘Questions of law are not decided in an intellectual quarantine area in which legal doctrine and the local history of the dispute alone are retained and all else is forcibly excluded. We cannot afford to be ignorant of the world in which disputes arise.’
In his dissent, Judge Pal refers to the trial as a ‘sham employment of legal process for the satisfaction of a thirst for revenge.’
He concluded: ‘I would hold that every one of the accused must be found not guilty of every one of the charges in the indictment and should be acquitted on all those charges.
‘Judge Pal never intended to offer a juridical argument on whether a sentence of not guilty would have been a correct one.
According to Norimitsu, while he fully acknowledged Japan’s war atrocities – including the Nanjing massacre he said they were covered in the Class B and Class C trials. Judge Pal noted, ‘I might mention in this connection that even the published accounts of Nanking ‘rape’ could not be accepted by the world without some suspicion of exaggeration…’
Furthermore, he believed that the exclusion of Western colonialism and the use of the atom bomb by the United States from the list of crimes, as well as the exclusion of judges from the vanquished nations on the bench, signified the ‘failure of the Tribunal to provide anything other than the opportunity for the victors to retaliate.’
Pal wrote that the Tokyo Trials were an exercise in victor’s justice and that the Allies were equally culpable in acts such as strategic bombings of civilian targets. Regardless of his personal opinions about Japan, he deemed it appropriate to dissent from the judgment of his ‘learned brothers’ to embody his love for absolute truth and justice. ‘When time shall have softened passion and prejudice, when Reason shall have stripped the mask from misrepresentation, then Justice, holding evenly her scales, will require much of past censure and praise to change places’ wrote Pal quoting Jefferson Davis in the conclusion of the dissent. In general, fear of American nuclear power was an international phenomenon following the bombings of Hiroshima and Nagasaki. In this he was not alone among Indian jurists of the time; one prominent Calcutta barrister wrote that the Tribunal was little more than ‘a sword in a wig’.
At the end of the American occupation in Japan in 1952, a ban on the publication of Judge Pal’s 1,235-page dissent, was lifted which Japanese patriots used as the basis of their argument that the Tokyo trials were biased.
In academic context, it has since generally been argued that the underlying aim of the trials was to shift blame from the Emperor of Japan to Tojo as the culprit of the war.
Psychologist and cultural critic Ashish Nandy argued that Judge Pal’s lone dissenting opinion, that the Japanese soldiers were only following orders and that the acts committed by them weren’t illegal in an indictable sense, was because of ‘his long exposure to the traditional laws of India,’ combined with a sense of “Asian solidarity” within the ‘larger Afro-Asian context of nationalism.’
In 1966, Pal visited Japan and said in a speech that he had admired Japan from an early age for being the only Asian nation that ‘stood up against the West’. The Emperor of Japan conferred upon Pal the First Class of the Order of the Sacred Treasure. Pal is revered by Japanese nationalists and a monument dedicated to him stands on the grounds of the Yasukuni Shrine. The monument was erected after Pal’s death. The principled judgment of Judge Radhabinod Pal after the War is remembered even today in Japan.
On 23 August 2007, Japanese Prime Minister Shinzo Abe met with Pal’s son, Prasanta Pal, then in his 80s, in Kolkata, during his day-long visit to the city. Prasanta presented Prime Minister Abe with four photographs of his father, of which two photographs were of Radhabinod Pal with Abe’s grandfather, former Japanese Prime Minister Nobusuki Kishi. In the 2016 Indian miniseries, Tokyo Trial, Pal is portrayed by actor Irrfan Khan.
(Jehangir Hussain is a senior journalist. Email: [email protected]).
