Remembering Radhabinod Pal’s Dissenting Opinion at the Tokyo Trial

Judges of the Tokyo Tribunal
The Judges of the Tokyo Tribunal. Credit: United States Army, Public domain, via Wikimedia Commons

Shinzō Abe, former Prime Minister of Japan during this visit to India in 2007 paid tribute to Justice Radhabinod Pal. In his speech at the Indian Parliament, he remarked, “Justice Pal is highly respected even today by many Japanese for the noble spirit of courage he exhibited during the International Military Tribunal for the Far East.” In 1966, Justice Pal was awarded the Order of the Sacred Treasure First Class by the Emperor of Japan, one of the country’s highest honours. Justice Pal, a Japanese hero, has received little attention in the Indian discourse of reading international law and history. 

Justice Radhabinod Pal was an Indian judge appointed to the International Military Tribunal of the Far East, set up by the Allied powers to try Japanese leaders for “war crimes.” He was appointed as one of the 11 members of an international military tribunal by General Douglas MacArthur in 1946 as a representative of British India. As a Judge of the Tribunal, Pal wrote an extensive dissent rejecting the legitimacy and authority of the Tribunal as an instrument of victor’s justice. Justice Pal was the sole dissenting voice who exonerated all the arrested Japanese leaders of all charges. 

Pal argued that “[Tokyo Charter] that set up the tribunal, transgressed the fundamental rules of international law.”  He remarked, “I cannot stand idly by and watch future generations of Japanese children be burdened with a warped sense of guilt which infects them with servility and decay.” After losing everything at the war, Justice Pal’s message to Japanese people was undoubtedly a source of courage and hope. Justice Pal insisted throughout the trial that Japan was innocent according to the general principles of international law. He continuously argued that Japan did not wage a war of aggression but acted in self-defence and liberation.

Apart from Justice Pal, other judges were from the US, Canada, Britain, France, the Netherlands, Australia, New Zealand, the Soviet Union, China and the Philippines. The courtroom was designed to replicate the one being used to try the Nazis at the Nuremberg trial and they deeply relied on the Nuremberg legal precedents. The Allied forces decided to add Asian representation, and subsequently Judges were nominated from India and Philippines. 

After the 932-day trial, the Tribunal found all 25 defendants guilty. However, Justice Pal in his 1,235-page dissenting judgement wrote that “the tribunal was a sham employment of legal process for the satisfaction of a thirst for revenge.” Milinda Banerjee in her work India’s ‘Subaltern Elites’ and the Tokyo Trial argues “Given India’s transitional political status, from colony to independent state, during the trial, there was little scope for developing a national strategy towards the trial in the manner of some of the other participant countries.” Being a representative of the third world, Pal’s dissenting voice deserves special emphasis to study the relationship between imperialism and the development of international law.

India has disowned the legacy of Justice Pal. Prof. Prabhakar Singh in his work Reading RP Anand in the Post-Colony: Between Resistance and Appropriation writes “Indian lawyers were left to choose between two parallel approaches to international law advanced by Prime Minister Nehru and Judge Pal after decolonization. Albeit politically distancing himself from the West, Nehru believed in the role of international law, even as Justice Pal was particularly against international adjudication given his characterization of the Tokyo Trials as “victor’s justice.” Ashis Nandy argues that “some saw Judge Pal repaying the Japanese warlords for their support of the Indian National Army created by the nationalist Bose in Singapore.”

During the trial, the onus was on the prosecution to establish guilt beyond a reasonable doubt. All the accused pleaded not guilty. On the course of the trial, the question arose if the Japanese are to be put on trial for their acts, then why not the United States President Truman and his Chief of Staff be prosecuted for the horrendous nuclear bombing on Hiroshima and Nagasaki. However, the question fell on deaf ears.  

Justice Pal wrote in his verdict, “I would hold that each and every accused must be found not guilty of each and every one of the charges in the indictment and should be acquitted of all those charges.” In his view, the atomic bombings of Hiroshima and Nagasaki were the worst crimes committed during the war, comparable with the Holocaust. He argued that Japan’s purpose of going to war was largely dictated by security. At the end of the trial, Justice Pal’s words were, “Tokyo Trial was conducted by demagogues of wartime propaganda. The purpose of the trial was to implicate Japan as responsible for all wrongdoings. I would have never believed how such deceit has crushed the spirit of Japanese people. The Tokyo trial has inflicted even greater damage than the Atomic Bomb.”

In 1952, after the end of the American Occupation of Japan, Justice Pal’s nearly 2,50,000 words dissent judgement was published for the first time which was then used by Japanese nationalists to argue that the Tokyo Trials were meaningless and holds no value. In his dissent, Justice Pal writes on ‘war’, that, “war is a contention between two or more states through their armed forces, for the purpose of overpowering each other. Recourse to hostilities without a previous declaration of war, or a qualified ultimatum, is forbidden. But war can nevertheless break out without these preliminaries. A state might deliberately order hostilities to be commenced without a previous declaration of war. The armed forces of two states having a grievance against one another might engage in hostilities without having been authorized thereto, hut at the same time, without the respective Governments ordering them to desist from further hostilities. War is actually in existence if the other party forcibly resists acts of force undertaken by a State.” 

Justice Pal held that “no category of war became criminal or illegal in international life.” Since war is not illegal under the framework of international law, “individuals comprising the government and functioning as agents of that government incur no criminal responsibility in international law for the acts alleged.” Japanese even dedicated a memorial to Justice Pal between the Yasukuni Shrine and Yushukan, a museum committed to the Japanese military to commemorate Japanese war heroes. While India’s international legal studies rarely explore Justice Radhabinod Pal’s approaches to imperialism, criminality, justice and victor’s justice, contextualizing Pal’s dissenting opinion can disinter third world approaches to international criminal law.

Adithya Anil Variath is a law and policy researcher. Gauri Rane is a Teaching and Research Associate at MNLU Mumbai.