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Justice Pal Dissent In Tokyo Trial: Opinion That Shines From Multiple Facets

The grassroot history of setting up of international tribunals for prosecuting war crimes during second world war speak volumes. One such was International Military Tribunal for the Far East (IMFTE), widely referred as Tokyo Trial (May 3, 1946- November 11, 1984), to prosecute Japanese leaders for war crimes and related abuses in second world war. Considering the nitty-gritties, the trial is shaped by unsettling outcomes, long-standing antecedental disagreements, substantial political conflicts and legal legacies, selective choice of defendants, retrospective applied charges and evidentiary and procedural intricacies.

Unlike Nuremberg, the trial showed high conviction rate and was not unanimous. Justice Pal was the sole judge on the bench who dissented holding 'not guilty' and exonerated all 25 defendants from all charges. It is relevant to revisit Tokyo Trial, especially Justice Pal's dissent, in order to study disastrous effects of responses and conduct deployed by international legal stakeholders and its inheritance in contemporary legal world. Justice Pal's dissent is a strong antidote for legal and intellectual history and when, dissected, is full of contradictions. Besides. there have been several critiques of his dissent, still, he is the ancestral, authoritative and ideal voice of third world approached towards international criminal law.

Introduction
Justice Pal's vehement dissent is, primarily, the most confronted, consoled and confounded judgement in the international criminal law. Commemoration of legal personality, envisions courtroom accountability, has opened gates for cordial, congenial and victim-centric approach. It is an example of interface between art and self-promotional goals of international justice, which cannot be darted by outreach efforts of international tribunals.

However, it may flow with counter currents, international courts and its standards might discomfit and vex these efforts.[1] In order to expand their efforts, it may not be just for courts to minutely manage and manicure the strikingly different outreach efforts of other justices.

One such judgement at International Military Tribunal for the Far East (IMTFE) authored outreach efforts through the dissent by Justice Rabindra Pal, wherein he acquitted every defendant and for whom a memorial has been dedicated in Japan.[2] Memorials are considered as memoir of atrocities with positively honouring the victims. They manifest respect and benevolence along with contesting justice, prompt experiences and varied legitimacies.[3]

IMTFE was established to prosecute major stakeholders and leaders involved in aftermath of second world war by Japan in 1946 on three categories of crimes: crime against peace, crime against humanities and conventional war crimes.

Unlike International Military Tribunal at Nuremberg (IMTN), numerous judges among eleven of them gave separate concurring opinions. Analogous to Justice Pal's dissent, the Dutch judge acquitted five defendants holding them innocent on account of non-existence of conspiracy. Likewise, the Australian Judge hypothesised that non-indictment of Japanese emperor should be considered and the French Judge highlighted key procedural shortcomings.

Both Canadian and Chinese Judges joined majority but the former criticised IMTFE in his private governmental communications and the latter supported Pal's dissent in imperialism and colonialism aspects. Filipino Judge, being survivor of Bataan death march in 1942, authored his opinion with harsh punishments to the defendants.

The dichotomy regarding functional approach of international tribunal revolves around gathering substantial knowledge or ensuring justice and fairness to accused along with safeguarding victims with accountability. Justice Pal has never written any dissenting opinion while delivering judgements in Indian courts and ironically his signature is absent at the end of affirmation[4] signed by IMTFE judges before Tokyo trial.

There have been far-reaching ramifications of innumerable legal foibles in Tokyo trial, i.e., appreciating political expediency over legal principles, scuttled justice in trial at the cost of procedural protections and morality, naked technological dexterity, non-indictment of Emperor Hirohito, dictatorially controlled media enriching injustice, unjustified conviction on account of biased judges and evidential errors, snatching fundamental rights of defendants and focussing on retributive punishment, retrospective application and death sentences through single vote resulting in arbitrariness, hypocrisy and buttressed victor's justice.[5]

In order to serve powerful officials, policies were subjected to capricious, illegitimate, vindictive, illegal, secret or haphazard actions which resulted in repression usurping ultimate purpose of ensuring justice. Justice Pal's dissent questions status of international law as international on account of scantiness of scholarly writings and moulded international law based on practices of victor's nations.[6]

Hailing from colonial society, he unveiled the intrusion of racism and biasness within international legal order. Certain judges of the IMTFE condemned Japan's participation in war crimes with aggressively emphasising on atrocities executed by Japanese armed forces in territories victimized by Western colonization.

Justice Pal's Dissent: Beyond Victor's Justice

In his dissent, Justice Pal absolved the guilt of all Japanese defendants. His complex and accommodative positivist stance, articulated as Third-Worldist emotion, revealed relationship between international law and status quo. He opined that flowing the black letter law is hazardous in accordance with dictating conscience, subjective motives of prosecuting powers and devoid of sense of morality and humanity.

Making universal claims prematurely can raise suspicion with regard to charging the accused for self-serving reasons. It is evident that status quo was maintained by powerful opportunists but it is not viable for objections and related grievance to be settled with aggressive warfare in order to regulate international relations.

Justice Pal firmly disregarded the idea of exercising 'self-help by force' in colonial struggles as the colonized community cannot be subject to perpetual dominion in the name of peace-keeping, thereby overturned the priorities internationally to anti colonial justice (fundamental to establish peace according to him).[7]

Herein, he set aside positivist notion in lieu of 'Just war' theory and naturalism. Most criticised aspect was his non-affirmative attitude towards unjust nature of Japan's war for he opined that the Japanese leaders believed to be acting in self-defence for liberation with sanction. Although he did not positively affirmed Japan's war crimes but he did not consider it as illegal as indictable. Justice Pal shifted from aggressive (illegitimate) to defensive (legitimate) war approach and trapped within the debate.

Justice Pal backed acquittal of all defendants on the premise that there was tragic violence and common military aggression from both virtuous allies and offensive axis powers from 1928-1945, the narrow and convenient period of IMTFE's mandate. The fact that IMTFE seeks to punish Japanese abuses in territories that were seized through imperial violence was disturbing for him.[8]

Advocating absolute pacifism and Gandhian ideology, he immunes and revictimizes them by the reason of anti-colonialism. He discarded charges of crime against peace and conspiracy on the grounds of legality and retrospectivity. He highlighted hasty, ulterior and opportunistic course of prosecution powers with the view that the law was not so developed to adjudge Japanese defendants as criminally responsible for their actions[9].

Non-participation of colonized, newly independent, temporal states in universal codification of law and prosecuting them for corresponding crimes crystallised post-action contributes to grave injustice in regard to retrospective, vengeful and sham application of law. Legitimate employment of legal processes should be organically prospective and based on consensual law.

In absence of international commonwealth, reserving custody of ensuring common good and power of prosecution against breach of peace in handful of states is problematic. The idea of transferring power to set international adjudicatory institution to some states without existence of any organised international legal community is unsettling for Justice Pal.

Justice Pal, post investigation of charges, stressed that they are without any factual nexus, thereby insufficient to establish criminal responsibility of defendants. Questioning command responsibility doctrine, it was difficult for Justice Pal hold them guilty for violence implicated as conventional war crimes. Setting aside radical modernism, he remained conservative legal positivist who was galled by political tension in findings of the tribunal and uneven one-sided charge framing not taking into account violent recidivism through atomic bombing at Hiroshima-Nagasaki.

He attributed them as worst atrocities of war in line with Nazi abuses.[10] He sarcastically concluded non-existent claims of criminally punishing for breach of shared responsibility of ensuring common good when other side is too guilty of deploying violence.

Justice Pal justified his abstinence from voting on Draft Code of Offences against the Peace and Security of Mankind in 1954 on similar grounds of providing legitimate excuses to dominant powers and victor's nations to commit continued injustice. Beyond discrimination on the basis of race or nationality, he argued to eradicate war by establishing international community under rule of law, called Super State.

He believed in agency of humanism and philosophy of dharma continuing legacy of Gandhian principles.[11] His dissent and subsequent writings reflected heirlooms of imperialism and colonialism, judicial independence, encouragement towards dissenting and concurring opinions, even-handed adjudication transgressing victor's justice establishment of new international legal order based on rule of law.

Justice Pal's dissent is the epitome of both rigid and flexible legal and political philosophy. He found a common ground with Japan in terms of self-determination, anti-colonialism, non-aligned movement against western foreign policies and anti-militarist towards victor's nations.[12]

His dissent has somewhat garnered his personality as being mischaracterised for sympathising with convicted Japanese officials, however, many others consider that he had just reasons pertaining to ex-post facto powers of tribunal in charge framing, victor's justice etc. for supporting their acquittal.[13]

However, due to constant opposition post-independence and to maintain international diplomatic relations, India disowned Justice Pal and outweighed his dissent.[14] Some scholars preached that his presence on the bench was to enhance Asian presence. Other argue that, despite of objections, he was mistakenly appointed and inferiorly accommodated.

Balancing Spectrum and Related Criticisms

An inclusive environment is quintessential for deciding questions of law in light of legal doctrines, historical and cultural perspectives. Justice Pal asserted the issue of conquerors, at fault themselves, adjudicating the conquered for crimes. The dispute cannot be ignored as it is not morally correct for Allies to exercise right of passing judgement against imperial Japan when most of the territories and humanity are subjected to Western Colonialism.

He impliedly pointed out that America provoked Japan into war. Following the footsteps of western world, Japan, being devoid of natural resources, annexed and established territories in East Asia. Japan can, in no manner whatsoever, be single-handedly tried for crimes committed for imperialistic desires when western world, with precise and efficient scientific methods caused deaths of large chunk of civilian population through air-bombing.[15] He red-flagged the lapse of inquiry against the western colonisation and nuclear warfare as breach of peace, crimes against humanity and war crimes.

Moreover, he mentioned about non-righteousness revolving around immunity provided to emperor and his family for being prosecuted for crimes before the tribunal, which further extended to those who provided scientific formula and human experiments of developing bacteriological weapon and related data to victor nations.

Although some scholars interpreted that Pal favoured Japan and its abuses as he severely attacked the western world, but his sense of courage was eminent with consistent approach of looking at all imperialist powers with same lens. His point was not to discriminate among them as prime defaulters are not just in punishing the defaulter following the trend.

Sardonically, he utterly suspicious of moderate exaggeration in published accounts with regard to sexual torture, rapes during Nanjing Massacre in 1937 and forced prostitution of women.[16] His dissent has been majorly lamented for such callous and skeptical attitude towards gender-based violence.

Serious violations of human rights have not only invoked collective consciousness about past but also followed contemporary memory of injustice. The opinions at tribunal failed to ponder upon the issues of biological warfare, prisoners' vivisection and methodical sexual enslavement of 'comfort women', thereby ignoring their plight.[17] A rigorous shift is required from 'selective memory' of international criminal trials to transform settled legal contentions and historical references in accordance with frequently changing times.

While denouncing the same, historical revisionists have denoted the act of invasion by Japan's military and related abuses along with false perception created by IMTFE with 'masochistic view'. There exist several apertures in denouncing sovereignty and related violence in Justice Pal's dissent and reverse conduct of Indian stakeholders.

Moreover, there have been ambiguities regarding concept of sovereignty and supra-state sovereignty on account of rejecting the same on one hand for promoting imperialism, racism, colonialism and violence and, on the other hand, seeking it as key to attain political autonomy within international arena. His dissent climaxes global transnational intellection translating sovereignty along with conceptualising politics of neo-colonialism and decolonisation resulting in radical productive contradictions.[18]

Justice Pal dissent radiates varied notions of aggression with compared to predominant contemporary legal framework and distinct between acts of war and acts of aggression. He legitimizes use of force in deploying right of self-defence within limits (beyond, will result in aggression) with regard to sovereignty and anti-colonial purpose.

Conclusion and Path Ahead
Justice Pal's principled judgement alludes that setting up of international criminal tribunal by conquerors to punish conquered is nothing but a retaliation opportunity transgressing fundamental rules of international law and sense of power assumed by victor's nations. Unlike Nuremberg, His dissent in Tokyo trial along with others and related proceedings awaited official publication long after the IMTFE became functus officio. Contritely, Tokyo trial and Justice Pal's dissent continues to remain oblivious and snubbed with minimal references made in contemporary legal scenario.

However, celebrating the legacy, these historical war crimes tribunals equip the International Criminal Court with cottage industry of closer and broad scrutiny along with lessons learned and unlearned. Compensating for past atrocities and submitting to international political and legal demands, Japan participated extensively in proliferation of International Criminal Court.

Justice Pal's encounters with international criminal law and legal techniques applied thereto have, particularly, been framed in accordance with historical, socio-cultural context of colonial India. Being a third world representative and hailing from colonised to newly independent India, his strategical arguments are indicative of relations among imperialism, global democracy and subtle growth of international legal framework.

He red-flagged individual criminal responsibility and command responsibility of natural persons for breach of international peace.[19] He consistently argued that Japan did not wage war through acts of aggression but of self-defence and liberation and his imperialist abuses are not sufficient to be charged and adjudged by victor's nations according to general principles of international law. His dissent annexes a novel picture of international criminal justice in light of universal self-defence and comprehensively developed legal norms.

Tokyo Trial, especially Justice Pal's dissent, gives complete, ambitious, objective and insightful account, supplementing Nuremberg lessons, with regard to establishment and conduct of international criminal trials in just, fair and reasonable manner.[20]It guides the conduct of lawyers, judges and other stakeholders in current international legal regime. The aim should be to expand legacy of these tribunals and Justice Pal's dissent along with emphasising their role in international criminal trials in modern world.[21]

In coming future, Justice Pal will be best remembered for colonial indictment and concurrent denial to establish guilt against Japanese imperialism. However, he failed to apply standards of colonial aggression and imperialism to subsequent actions of Japan. Justice Pal remains ignored, criticised and misused for audaciously dissenting most celebrated majority of that time.

End-Notes:
  1. Adithya Anil Variath and Gauri Rane, "Remembering Radhabinod Pal's Dissenting Opinion at the Tokyo Trial", The Geopolitics (August 16, 2021).
  2. Norimitsu Onishi, "Decades After War Trials, Japan Still Honors a Dissenting Judge", The New York Times Asia Pacific, Aug. 31, 2007.
  3. Justice Radhabinod Pal and the Tokyo Tribunal, The National WWII Museum, New Orleans, May 31, 2021.
  4. We will duly administer justice, according to law, without fear, favour or affect, and according to our conscience.
  5. Yuki Horie, "History and development of legal interpretation in Japan on the basis of the so-called Tokyo Trial", Comparative Legilinguistics 13:99, DOI: 10.14746/cl.2013.13.06 (April 2013).
  6. Sumedha Choudhury, "Contextualising Radhabinod Pal's Dissenting Opinion in Contemporary International Criminal Law", Asian Journal of International Law, 1-9 (2021).
  7. Adil Hasan Khan (2016) "International lawyers in the aftermath of disasters: inheriting from Radhabinod Pal and Upendra Baxi", Third World Quarterly, 37:11, 2061-2079, DOI: 10.1080/01436597.2016.1191940.
  8. Ushimura, K., "Pal's 'Dissentient Judgment' Reconsidered: Some Notes on Postwar Japan's Responses to the Opinion", Japan Review, 19, 215-223 (2007).
  9. Totani, Y. (2008), "The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II", Harvard University Asia Center, 1st ed., Vol. 299, https://doi.org/10.2307/j.ctt1tm7fq3
  10. Shuvra Dey, "Dissenting Opinion of Justice Radhabinod Pal on the Notion of Aggressive War: A Critical Evaluation", Journal of East Asia and International Law 8(1), DOI: 10.14330/jeail.2015.8.1.10 (May 2015).
  11. Shankar Chatterjee, "Great Indian Judge Radhabinod Pal: Popular in Japan", Reader's Blog, by The Times of India, Mar 19, 2020.
  12. Milinda Banerjee, "Decolonization and Subaltern Sovereignty: India and the Tokyo Trial, War Crimes Trials in the Wake of Decolonization and Cold War in Asia", 1945-1956, DOI: 10.1007/978-3-319-42987-8_4 (November 2016).
  13. Charu Sudan Kasturi, "The Indian jurist who tried to save Japan's WWII officials", OZY Modern Media Company (January 6, 2019).
  14. Sanjoy Ghose, "'We are no way responsible for this'- The story of Radhabinod Pal, the jurist India disowned", The Leaflet (August 14, 2020).
  15. John Haley, "The Tokyo International Military Tribunal: A Reappraisal, and: The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (review)", The Journal of Japanese Studies 35(2), 445-451, DOI: 10.1353/jjs.0.0094 (January 2009).
  16. Timothy Brook, "Radhabinod Pal on the Rape of Nanking: The Tokyo Judgment and the Guilt of History", The Nanking Atrocity, 1937-1938, DOI: 10.2307/j.ctvw049jm.14 (August 2017).
  17. Henry Nicola, "Memory of an Injustice: The 'Comfort Women' and the Legacy of the Tokyo Trial", Asian Studies Review 37(3), 362-280 (2013).
    See also Henry Nicola, "Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence", The International Journal of Transitional Justice, 3, 114-134 (2009).
  18. Jaak Uibu, "The Dissenting Opinions of Justice Radhabinod Pal at the Tokyo War Crimes Tribunal", The International Centre for Defence and Security (ICDS), Estonia (February 20, 2020).
  19. Nakajima Takeshi, "The Tokyo Tribunal, Justice Pal and the Revisionist Distortion of History", The Asia-Pacific Journal- Japan Focus, Vol 9, Issue 44(3) (Oct 31, 2011).
  20. Varadarajan, L., "The trials of imperialism: Radhabinod Pal's dissent at the Tokyo tribunal", European Journal of International Relations, 21(4), pp. 793-815, DOI: 10.1177/1354066114555775 (2015).
  21. MeĢgret, F. and Tallgren, I., "The dawn of a discipline: International criminal justice and its early exponents", Cambridge University Press, pp. 230-259, DOI: 10.1017/9781108769105 (2020).


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