In the aftermath of World War II, the national boundaries of many countries were redrawn, new nations were formed and just like World War I, there was a desperation to blame the defeated Axis Powers (Germany, Japan and Italy) for the bloodbath everyone participated in. Besides the alterations to national boundaries, politics and the hope to rebuild the future on the rubble of the present, the world witnessed several trials meant to bring war criminals to justice. Among these, the International Military Tribunal for the Far East (IMTFE), widely known as the Tokyo Trials stands out for its contentious judgement. However, a person who emerged as a pivotal figure was Justice Radhabinod Pal from India.
Radhabinod Pal from Calcutta High Court to Tokyo Tribunal: Journey of becoming India’s pride and Japan’s hero
Radhabinod Pal’s dissenting verdict at the Tokyo Tribunal which was set up in 1946 to try Japanese military and political leaders for war crimes, sparked a debate in his era and left a lasting legacy in the political and legal spheres. While in India, unfortunately, Pal does not get as much credit and honour as he deserves, Japan continues to revere Radhabinod Pal as no less than a hero.
Born on the 27th of January 1886, in what was then British India and now Bangladesh, Radhabinod Pal was an academic and jurist. He attended Presidency College and later the University of Calcutta where he obtained his law degree. Pal also served as a professor and vice-chancellor of the University of Calcutta later. He is accredited with having played a key role in the formulation of the Indian Income Tax Act of 1922. The British government noticed Pal’s excellence and appointed him as a legal counsel in 1927. His career as a judge started in 1941 with his appointment to the Calcutta High Court. He was a supporter of Netaji Subhash Chandra Bose and was opposed to imperialism and colonialism. He was a nationalist at heart.
Radhabinod Pal’s appointment to the Tokyo Tribunal came in 1946, a year after the Allied Powers which included Britain, India under British control, and the United States among others. While in Europe World War II ended on 8th May 1945 with Nazi Germany’s unconditional surrender, in Asia, the grand war ended on 2nd September 1945 after Japan’s surrender, following the atomic bombing of Hiroshima and Nagasaki. With his appointment to the Tokyo Tribunal, Radhabinod Pal became one of the 11 judges each representing an Allied nation. The other 10 judges were from the US, Canada, Britain, France, the Netherlands, Australia, New Zealand, the Soviet Union, China and the Philippines.
Pal’s appointment to the Tribunal came after significant protests back in India about an evident lack of diversity on the panel. He, however, made sure that he was not a mere token Indian on the Tribunal and his voice does not echo the victors’ narrative but put forth a balanced and nuanced perspective.
The Tokyo Trials
Modelled on the Nuremberg Trials in Europe, the Tokyo Trials, which lasted from May 1946 to November 1948, were established to prosecute Japanese leaders for war crimes, including “crimes against peace,” conventional war crimes, and crimes against humanity. Following the Potsdam Declaration, the tribunal was founded to hold those responsible for Japan’s ‘aggressive’ warfare accountable. The trial’s verdict witnessed 25 defendants, including former Prime Minister Hideki Tojo, sentenced, with seven receiving the death penalty.
Historian John Dower deems the Tokyo Trial was “fundamentally a white man’s tribunal”. Interestingly, Justice Radhabinod Pal called the tribunal the “victor’s justice”.
The dissenting verdict
Throughout the trials, Pal stood out for his differing perspective. He was the only judge who argued that all defendants should be acquitted of all counts. His reasoning was strongly entrenched in a critique of “victor’s justice,” in which he questioned the tribunal’s legal and moral authority. Pal contended that the tribunal was a tool for retribution rather than justice, specifically criticising the retroactive application of statutes such as “crimes against peace” and “crimes against humanity.” He also underlined the lack of accountability for the actions of the Allied powers, particularly the United States’ atomic bombings of Hiroshima and Nagasaki.
“The name of Justice should not be allowed to be invoked only for the prolongation of the pursuit of vindictive retaliation. The world is really in need of generous magnanimity and understanding charity. The real question arising in a genuinely anxious mind is, “Can mankind grow up quickly enough to win the race between civilization and disaster?” Justice Pal wrote in his dissenting judgement.
The IMTFE delivered its verdict in a series of announcements between November 4 and 12, 1948, via a 1,218-page judgment.
In contrast to the renowned Nuremberg trials, the Tokyo tribunal’s verdict was not unanimous. Justice Radhabinod Pal dissented from the majority decision, issued a separate dissenting opinion, and made a statement detailing his reasons for dissent. Justice Pal also refused to sign the “joint affirmation to administer justice fairly.”
Justice Pal, however, was not the sole dissenter on the Tribunal. Justice Henri Bernard of France and Justice B.V.A. Röling of the Netherlands dissented, albeit in part.
Radhabinod Pal argued in his dissenting judgement that the tribunal was a “sham employment of legal process for the satisfaction of a thirst for revenge”. He additionally noted the “failure of the tribunal to provide anything other than the opportunity for the victors to retaliate”. Justice Pal also contended that the US had instigated the war with Japan and expected Japan to respond.
Highlighting the vindictive nature of the Tokyo Trials, Justice Pal wrote, “As a judicial tribunal, we cannot behave in any manner which may justify the feeling that the setting up of the tribunal was only for the attainment of an objective which was essentially political though cloaked by a juridical appearance. It has been said that A VICTOR CAN DISPENSE TO THE VANQUISHED EVERYTHING FROM MERCY TO VINDICTIVENESS; BUT THE ONE THING THE VICTOR CANNOT GIVE TO THE VANQUISHED IS JUSTICE. At least, if a tribunal be rooted in politics as opposed to law, no matter what its form and pretences, the apprehension thus expressed would be real, unless If JUSTICE IS REALLY NOTHING ELSE THAN THE INTEREST OF THE STRONGER”.
Justice Pal deemed the proceedings as ex post facto law and opposed the retrospective application of laws to justify prosecuting the Japanese leaders. The Indian judge was of the view that international law, especially regarding crimes against peace, had not been specifically defined before the war. Thus, punishing the 25 Japanese leaders for actions not essentially recognised as war crimes was unfair.
“The trials should not be allowed to use up the precious little thought that a peace-bound public may feel inclined to spare in order to find the way “to conquer the doubts and the fears, the ignorance and the greed, which made this horror possible. “If the vindictive and oratorial pleas of the prosecutors in the language of emotionalized generalities did entertain rather than educate. “We may not altogether ignore the possibility that perhaps the responsibility did not lie only with the defeated leaders. Perhaps the guilt of the leaders was only their misconception, probably founded on illusions. It may indeed be that such illusions were only egocentric. Yet we cannot overlook the fact that even as such egocentric illusions these are ingrained in human minds everywhere. It is very likely that “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,” Justice Pal wrote in his judgement.
The Indian judge also called out the hypocrisy of the trials where the war crimes of the victorious Allied Powers were ignored including the bombings of Hiroshima and Nagasaki that caused unprecedented damage to Japan and crushed their spirits.
In addition, Justice Radhabinod Pal considered that the Western Colonial Powers and the US should be dragged into the court of justice for some of the atrocities, especially for the use of the atomic bomb by the United States.
He also disputed the allegation that Japan conspired to commit war crimes. Justice Radhabinod Pal maintained that Japan’s actions were driven by self-defence and the complicated geopolitical situation in Asia at that time.
While Justice Pal’s dissent was not adopted by the tribunal given blaming the defeated side was the zeitgeist those days, his verdict became a significant historical document offering a different and rather humane perspective on the legality and fairness of the Tokyo Trials. The court convicted all 25 defendants with 7 sentenced to death, 16 to life in prison, and two to 20 and 7 years, respectively.
It is pertinent to mention here that Justice Pal was not overly sympathetic towards Japan as it may seem. In fact, he acknowledged that Japan committed war crimes and horrendous atrocities including the 1937 Nanjing Massacre wherein the Imperial Japanese forces brutally killed soldiers and civilians in the Chinese city of Nanjing and numerous girls and women were raped.
Justice Pal, however, was of the view that these war crimes should have been classified and punished under the Class B and C categories (which covered more conventional crimes of war).
The impact and the undying legacy of Justice Radhabinod Pal and his dissenting verdict
Pal’s dissent made him an iconic figure in certain Japanese quarters, particularly among nationalists who saw his decision as support of their contention that Japan was not predominantly to blame for the war. His more than 1000-page dissent was published in Japan after the American occupation ended in 1952, and it became a touchstone for those who questioned the legality of the Tokyo Trials. To this day, Japan remembers Justice Radhabinod Pal. The famous Yasukuni Shrine and the Kyoto Ryozen Gokoku Shrine have monuments honouring the Indian judge.
While less known in his motherland, Justice Pal’s role has been revisited in the Netflix series Tokyo Trials starring late actor Irrfan Khan. The series brought renewed attention to Pal’s contributions.
It was a historical irony since Justice Radhabinod Pal’s appointment to the tribunal was seen merely as a token gesture to include an Asian perspective, but Pal’s dissent turned this assumption on its head, making him a symbol of anti-colonial resistance in legal terms.
Justice Radhabinod Pal received the Order of the Sacred Treasure First Class, one of Japan’s highest awards, from the emperor in 1966. A year later, passed away. During a 2007 visit to India, then-Japanese Prime Minister Shinzō Abe paid respect to Pal in his address to Parliament. He also met the late Justice Pal’s son in Kolkata. Back in 2016, PM Abe told Prime Minister Narendra Modi that Japan continues to honour Justice Radhabinod Pal and said “Every Japanese knows Pal.”
Justice Pal, however, would truly be honoured when not only every Japanese but every Indian also recognised and remembered his contributions and lasting legacy.
