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
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.
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. 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
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. 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.
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
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 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
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
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).
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
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
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.
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
He attributed them as worst atrocities of war in line
with Nazi abuses. 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. 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.
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.
However, due to
constant opposition post-independence and to maintain international diplomatic
relations, India disowned Justice Pal and outweighed his dissent. 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
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.
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. 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
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.
utterly suspicious of moderate exaggeration in published accounts with regard to
sexual torture, rapes during Nanjing Massacre in 1937 and forced prostitution of
women. 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. 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.
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
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.
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. 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.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.
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.
- Adithya Anil Variath and Gauri Rane, "Remembering Radhabinod Pal's
Dissenting Opinion at the Tokyo Trial", The Geopolitics (August 16, 2021).
- Norimitsu Onishi, "Decades After War Trials, Japan Still Honors a Dissenting
Judge", The New York Times Asia Pacific, Aug. 31, 2007.
- Justice Radhabinod Pal and the Tokyo Tribunal, The National WWII Museum,
New Orleans, May 31, 2021.
- We will duly administer justice, according to law, without fear, favour
or affect, and according to our conscience.
- 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
- Sumedha Choudhury, "Contextualising Radhabinod Pal's Dissenting Opinion in
Contemporary International Criminal Law", Asian Journal of International Law,
- 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.
- Ushimura, K., "Pal's 'Dissentient Judgment' Reconsidered: Some Notes on
Postwar Japan's Responses to the Opinion", Japan Review, 19, 215-223 (2007).
- 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.
- 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).
- Shankar Chatterjee, "Great Indian Judge Radhabinod Pal: Popular in Japan",
Reader's Blog, by The Times of India, Mar 19, 2020.
- 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).
- Charu Sudan Kasturi, "The Indian jurist who tried to save Japan's WWII
officials", OZY Modern Media Company (January 6, 2019).
- Sanjoy Ghose, "'We are no way responsible for this'- The story of
Radhabinod Pal, the jurist India disowned", The Leaflet (August 14, 2020).
- 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
- 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
- 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).
- 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).
- 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).
- 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).
- Mégret, 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).
Award Winning Article Is Written By: Ms.Ritika Kanwar
Authentication No: MA213340479280-13-0522