Lecture 2005-03-21
"Justice Radhabinod Pal and the Tokyo War Crimes Tribunal: A Retrospective of his Historic Dissent"
Dr. Vivek Pinto

Dr. Vivek Pinto, a visiting professor at Sophia University, had conducted his research into Justice Radhabinod Pal after receiving the G.S. Pohekar fellowship in 2003 from the Asiatic Society of Bombay, founded in 1804, and by so doing had been contributing to its objective of promoting useful knowledge, particularly that connected with India.

There were two Indians, he said, whose names resonated with deep meaning in Japan. One was Mahatma Gandhi; the other was Justice Pal, the sole judge on the International Military Tribunal to acquit all the defendants of committing war crimes, and this in spite of a directive from Gen. MacArthur proscribing any acquittal. In passing his dissenting judgement, Pal was actuated by a deep sense that the prosecutors were themselves equally guilty of crimes against humanity, hence the Japanese leaders were not to be singled out as war criminals, and neither was the Emperor, who as titular head of state might legally have been held responsible for the acts carried out in his name. Undoubtedly Judge Pal must have been grieved by the tragic loss of life in Japan, first as a result of the incendiary bombs dropped on Tokyo on March 10th, 1945, and then by the atomic bombing of Hiroshima and Nagasaki. Nor should one forget that the number of Indian combatants killed in World War II exceeded the numbers of those of most of the other countries directly involved.

Dr. Pinto said he found this logic not only specious and circuitous, but most unhelpful, especially as it came from a justice as experienced in both the theory and practice of law as Justice Pal was. As Mark Osiel had written, "The bombing of Nagasaki does not excuse or justify the Rape of Nanking, as all sensible people readily acknowledge." One would have expected of Justice Pal a compelling statement restraining the impulses leading to an "interminable cycle of recrimination and reprisal over the past".

To understand what so moved Justice Pal, one needed to know his background. He was a Bengali, born in 1886 when India was still very much a British colony. An event which stirred his political consciousness was the partition of Bengal in 1905 by Lord Curzon, the British Viceroy of India. The ostensible reason for this was to provide a better administration, but the plain truth was that the British wished to detach the eastern districts, which were seen as the hotbed of a Bengali movement solidly opposed to British rule. In Bengal, the day of partition was universally celebrated as a day of mourning, and Rabindranath Tagore wrote poems for the occasion. Every Bengali felt personally touched by this "national insult". This event sowed in Pal's mind an anti-imperialism, which was furthered by the Amritsar massacre in 1919, and Gandhi's movement of non-violent non- cooperation, culminating in his "Quit India" campaign of 1942. This was the attitude that underlay Pal's refusal to go along with the unanimous decision of the original nine judges, who had arrived two months earlier, to rule out dissenting opinions and publish one majority opinion. In fact, one account has it that Pal announced his intention to file a dissenting verdict from the very beginning.

Another event that had a great impact on Pal and most Indians at the time was Japan's unexpected naval victory over Tsarist Russia in 1905. This victory was widely celebrated in colonial Bengal as the first Asian victory over a European imperial power. Here one could trace the early roots of what would later be called Pal's Pan-Asian ideology: the idea that Asians in one part of the continent were responsible for the plight of other Asians. This admiration of the Japanese was shared by Tagore, who forged deep personal ties with the Japanese art historian Okakura Kakuzō; these ties were to draw Tagore to visit Japan and make fervent pleas for Pan-Asianism and a stop to militarism, which, sadly, fell on deaf ears.

The early 1940s saw the formation of the Indian National Army (INA). The INA was recruited by the Japanese after the fall of Singapore in 1942, and sent against the British on the Indo-Burmese border in 1943. Pal's sympathies clearly lay with them, and in fact he once revealed to his Dutch colleague on the Tribunal that he was an admirer of the INA. This implies that he must likewise have been in sympathy with Subhas Chandra Bose, who hoped that the INA would become a revolutionary force that would drive the British out of India. As a nationalist, Pal was disposed to accept Japan's slogan of "Asia for the Asians" and regard the war as a means to "liberate Asia from the Europeans".

It is little wonder, then, that Pal is reported to have bowed to the defendants each time he entered the court, and later to have visited the prisoners in Sugamo and praised them for what they had done to liberate Asia. It is even said that Hideki Tojo left a haiku written in Pal's honour before going to the gallows. All in all, we can see that it was through the prism of Pan-Asianism that Pal viewed the proceedings of the International Tribunal.

Another aspect of the case is the fact that there is ample documentation to show that the chief American Prosecutor, Joseph Keenan, had been ordered not to indict the emperor. In view of this, it has been asked in some quarters why Justice Pal, prepared as he was to flout the authorities by dissenting from the majority judgement, did not take the further step of emphasizing his dissent by making such an indictment, perceiving, as he did, that the American sponsors of the Tokyo trial were "striving to create an international legal community in their own image". Dr. Pinto's research had brought him to the conclusion that Pal's nationalism, his Pan-Asianism and his love of Japan had all made him a reluctant monarchist. He had recognized that Japan at that time could not hold together without a central figure, and that if Japan collapsed the Americans would colonize the country. Also, as a man of law, he had recognized that the emperor was the law, and his authority needed to be upheld. Dr. Pinto concluded by quoting from a work by a Senior Law Lord, Tom Bingham, in which he says that a judge must free himself of prejudice and partiality, so as to give no ground for doubting his ability to decide cases solely on their legal and factual merits as they appear to him. He continues "It is now regarded...as a cardinal feature of judicial impartiality that the judge should be a political eunuch...[and] do nothing which could give rise to any suggestion of political partisanship." Dr. Pinto left his audience with a question to ponder: Was Justice Pal a political eunuch or a determined partisan?

In the question time, there was some discussion, initiated by the former Indian Ambassador to Japan, Dr. Aftab Seth, on whether Pal was actuated not by political motives but by a feeling of humanity; and also on the question of "Victor's Justice" and the extent to which individuals could be held responsible for group movements. Justice Pal's qualifications in international law were also discussed; Dr. Pinto said that, though he did not deny that Pal was the most eloquent and informed man on the bench in matters of international law, all the literature clearly indicated that he had no academic degree in the subject.