Tokyo Trials: Defining Dissent by an Indian Judge
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Issue Net Edition | Date : 02 Mar , 2024


The Nuremberg trials were held by the Allies against representatives of Nazi government for carrying out invasion of other countries and atrocities committed against their citizens from November 1945 to October 1946. The International Military tribunal in a unanimous verdict concluded that Nazi Germany had committed supreme international crime, which was like ‘accumulated evil of the whole’. Out of 21 tried, 12 were sentenced to death. A similar international military tribunal was convened in April 1946   to prosecute Japan’s Military commanders for war crimes committed during the second world war. At the trial stage, which was managed by the USA, Japanese judges were not included. The scope of the tribunal was limited to selected Japanese actions and did not include dropping of the Atom Bomb by USA in Hiroshima and Nagasaki. Unlike the Nuremberg trials the Tokyo tribunal decisions was not unanimous. Out of 11 judges, 3 gave dissenting opinion. While two of these expressed specific reservation about the conduct of the trial, the dissent of Justice Radhabinod Pal was unique in that it disagreed completely with the majority judgement. Justice Radhabinod Pal, considered the trial to be an illegitimate case of victor’s justice for prosecuting individuals for action that were made crime after they were committed. His acquittal of all the accused of all charges demonstrated a nuanced counterpoint to caricatured depiction of early Asians by the colonisers on the civilising mission.

The Essence of Dissent

In essence, Justice Pal held that 25 military Japanese commanders including General Tojo, could not be held guilty for offences such as aggression since there were not illegal actions at that time. Though they were not legally culpable, their actions were condemned by Pal. Just because the allied powers had converted justice into a pursuit of vindictive retaliation, Pal would not convert his judicial opinion into a political retelling of why Japan may have acted the way it did. He was a judge and not a historian nor a campaigner for world peace.

His outlook towards the Tokyo Trial, according to Ashish Nandi, the psychologist, influenced his expertise in Hindu Law, the divine ordering or earthly life. Law is neither an instrument for punishment nor deterrence but rather the impulse to act from within, according to a divine sense of right. In his judgement, if any action can be rightly called war crime, it would have to be dropping of the atomic bomb by the Americans. It was an appeal to the Americans to look for divine impulse of right and wrong within them rather than solely punishing the Japanese for their action.

For Pal, law was culturally contingent and   international law has to accommodate cultural diversities to be legitimate. Fundamentally, in Hindu law, cultural diversity and not sameness, mutual respect and not hegemony is what matters. At a time, when India finds itself in the midst of an overt decolonisation campaign, that seeks to remove traces of colonisation rule from its citizens, we should rise to hear Pal’s counsel. We should not fall into the folly of responding to colonisers with colonising ones own, meeting violence with violence. We must speak a different language from the West and not the same language differently. .

Pal’s ideas did not endear to Jawaharlal Nehru. He saw Pal’s pro Japan Judgement replete with wild and sweeping statements and worked diplomatically to distance the government of India from them. He was also possibly influenced by his difference with Subhash Chandra Bose who sided with Germany and Japan in his bid to free India from British imperial rule. Pal also seemed to have a soft corner for Bose. But his judicial independence is his abiding legacy for judicial profession in India; of a judge who could speak his mind, act autonomously and clearly distinguished right from wrong and not seek reward from the government. The Japanese have a memorial in Shinto Shrine complex in the heart of Tokyo in Pal’s honour.

Pal’s unique standing

His standing as a fly in the ointment of post WWII is recognised because of his efforts to institutionalise international justice. The crux of Pal’s argument was that for all the claims of a new progressive world order, global politics in the mid-20th Century was still defined by imperialism. The contemporary relevance of Pal’s critique can be seen in the sort of tribunals he participated in. The enterprise of institutional international justice never really took off during the decades of the cold war. However, in the immediate aftermath of collapse of USSR, the Nuremberg legacy was dusted off and given new lease of life with the establishment of two tribunals, one for Yugoslavia and another for Rwanda. 

There is a remarkable coalescence in the philosophy of Justice Pal and the philosophy of Edward Said, the celebrated academic critic. Edward Said is best known for his book Orientalism (1978), which critiques the cultural representation s that are bases of orientalism – how the western world perceives the Orient with contempt. Pal similarly critiques the western countries for trying to dominate, restructure and have authority over Japan. He combined a conservative legal positivism with radicalism that regards politics with which a court operates. The use of nuclear weapon by the US tops the list of war crimes. Besides exclusion of judges from the vanquished nations signified for Pal ; “the failure of the tribunal to provide anything other than the Victors  to retaliate. It was a sham employment of legal process for the satisfaction of a thirst for revenge.

Contours of International Law

Justice Pal was deeply suspicious of universal international law in a deeply unequal society. No shared norm is possible in the absence of a truly homogeneous community. For Pal legal order flows from social order and is governed by a sense of cosmic reason. For Pal imperialism and colonialism are crimes far bigger than aggression. He was a firm proponent for dismantling colonialism so as to recognise self determination as a fundamental right. This is what Tilak aspolitical activist, propounded as he considered   Self-rule asevery Indian’s birth right. So did Gandhi and Bose with their own ideological predilection.

The Epilogue

After the war crime trials, he was elected to the UN International Law Commission, where he served from 1958-1966’ He was a major contributor to the Indian Income Tax Act of 1922. But he would always be lionised for being unafraid of USA, at a time it threatened the world as a nuclear power and bringing up their culpability in strategic bombing of civilian targets of Hiroshima and Nagasaki. While concluding his dissent Pal quoted Jefferson Davis: When time have softened and prejudice and reason shall have stripped the mask from misrepresentation, then Justice, holding evenly her scales, will require much of the past censure and praise to change place. ‘Like Edward Said, Antonio Gramsci, the Italian neo Marxist, underlined the perils of cultural hegemony , when ruling classes use cultural institutions to maintain power in a capitalist society. Justice Pal used justice for the underdog as a powerful polemic against a nuclear power like USA, who went scot free after committing the heinous crime of dropping nuclear bomb in civilian areas and killing innocent children, women and the aged. He was particularly anguished that the Tokyo trials did not include crimes committed by USA in Japan, when it was hell bent on fixing the Japanese members for their crime during World War II.  At a time when courage and independence of our judges is at the crossroads, Justice Pal holds an incandescent candle to them, a lesson of dissent and courage to speak against palpable injustice being perpetrated by the powerful and not being held accountable. It was Justice Evan Hughes who said in 1936 ‘Dissent in the highest court is an appeal to the brooding spirit of law, to the intelligence of a future day, when a later decision may possibly correct the error in to which the dissenting judge believes the court to have been betrayed’. Justice Pal 12 years later in the Tokyo Military Tribunal trials seemed to echo that sentiment.  

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The views expressed are of the author and do not necessarily represent the opinions or policies of the Indian Defence Review.

About the Author

Prof (Dr) SN Misra

was previously Joint Secretary (Aerospace), Ministry of Defence, Government of India.

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