After the end of World War II, China, the UK, and the US jointly issued the “Proclamation Defining Terms for Japanese Surrender” (commonly called “Postdam Declaration”, 26 July 1945). It was subsequently adhered to by the then Soviet Union. The Postdam Declaration compelled the unconditional surrender of all Japanese armed forces and called for “stern justice” to be meted out to the war criminals. On 2 September 1945, the signatories for Japan, by command of and on behalf of the Emperor and the Japanese government, accepted the terms outlined in the Postdam Declaration. Following this Declaration, the Charter of the International Military Tribunal for the Far East [IMTFE] was convened by an executive decree of General Douglas MacArthur on 19 January 1946.Footnote 1 The Charter prescribed the constitution, the jurisdiction, and functions of the IMTFE, commonly referred to as the “Tokyo Tribunal”.Footnote 2 The Charter, relying on its predecessor, the Nuremberg Charter, laid down three offences over which the Tribunal had jurisdiction, namely, crimes against peace, conventional war crimes, and crimes against humanity.Footnote 3
Through an amendment to the Charter on 26 April 1946, a significant change was introduced to Article 2, adding India and the Philippines to extend the membership of the Tribunal to eleven members instead of nine.Footnote 4 It was on the British assertion that India, being a British colony and witness to the Japanese invasion, be included on the bench to demonstrate Asian representation and support at the Tokyo Tribunal.Footnote 5 Following the amendment, Radhabinod Pal from India was appointed as a judge at Tokyo. As a late addition, when Pal was informed that the nine original judges had decided to arrive at a unanimous decision, he made it clear that, not being a party to the original arrangement, he did not consider himself bound by it.Footnote 6 In his opinion, running to 1,235 pages, Pal dissented with the majority judgment and stated that: “I would hold that each and everyone of the 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.”Footnote 7
Besides wide criticisms the world over, Pal's Dissent was not well received by many in India.Footnote 8 For example, Jawaharlal Nehru, the first prime minister of independent India, was critical of Pal's Dissent. On 6 December 1948, Nehru wrote in a circular letter to the provincial Chief Ministers:
In Japan, the sentence of death passed on Japanese war leaders has met with a great deal of adverse criticism in India. The Indian Judge on that Commission, Justice Pal, wrote a strong dissentient judgment. That judgment gave expression to many opinions and theories with which the Government of India could not associate itself.Footnote 9
Contrarily, some scholars have highlighted that after independence the Indian government was never seen as dismissing Pal's dissenting judgment, even though it may have caused some diplomatic embarrassment.Footnote 10 In fact, it is noted that “ever since then his Tokyo judgment has been ritually commended by every Indian dignitary in the context of relations between India and Japan”.Footnote 11
Pal's Dissent was arguably one of the first instances where a judge from India, a colonized country, had an international platform on which to register his views on international law. Pal did not just critique the procedural and substantive issues at the Tokyo Tribunal, but also questioned the idea of international criminal justice and the nature of the international legal order that came to be established after the two world wars.Footnote 12 The implication of Pal's critique was not limited just to Japan, but also to newly independent India where there was a growing attempt to decide the extent to which post-colonial India should engage with the rules of international law. As Singh argues: “only Judge Pal, if at all, was able to translate the essence of political postcolonialism into international law.”Footnote 13
Even in present times, Pal's Dissent has a lot to offer.Footnote 14 A cursory analysis of the present international criminal legal order shows that his criticisms of the international criminal law [ICL] regime and global justice still hold. This paper focuses on Pal's Dissent at the Tokyo Tribunal and looks into its contemporary relevance.
I. Justice Pal's Dissent and individual criminal responsibility
The principal discourse on individual criminal responsibility [ICR] began after the end of World War II. The early development of international criminal law is seen as coterminous with the establishment of the Nuremberg and the Tokyo Tribunals. Its relative success led to the acceptance of the ICL regime in state practice, and its importance is often acknowledged by global civil society and in the mainstream international law literature. For the last few decades, it has become an intrinsic part of the international legal system and is seen as a panacea to all the major problems faced in realizing international justice.
While the importance of the development of ICL and the necessity of ascribing international criminal responsibility to individuals cannot be doubted, its drawbacks are often ignored or deliberately overlooked. As with ICL's beginning, its contemporary relevance is not free from non-legal considerations. An instance that lost its significance in the Western tendency of extirpating everything which was deleterious to the reputation of the ICL regime was the dissenting opinion of Radhabinod Pal. In mainstream Western international law scholarship, Pal's Dissent merely finds its place without much reflection. As Richard Falk notes: “Pal's dissent is an exemplary instance of anti-colonial jurisprudence, and not only does the Western academic literature ignore it, but it is not published in a text that is readily available in most libraries.”Footnote 15 Though in recent times Pal's Dissent has attracted attention, this is mostly from the Third-World scholars.
The analysis of ICR through the lens of Pal was significant as it challenged the then-existing international world order where the victor states were naturally perceived to be in a position to create laws and to punish the defeated at their will. Pal being a product of British colonized India and a witness to the domination of nations, his core argument revolved around the idea of victor's justice, imperialism, and unequal power relations among states. Pal realized that in a society where power relations are inherently unequal there can be no justice.Footnote 16
According to Pal, “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”.Footnote 17 Based on the principle of non-retroactivity of law, he criticized the majority judgment and questioned the legitimacy of the Tokyo Charter as it upheld two new categories of crimes on the lines of the Nuremberg Charter (1945). Pal affirmed that, while the alleged “conventional war crimes” by the Japanese defendants came within the jurisdiction of the Tribunal, “crimes against peace”, and “crimes against humanity”, as defined in the Tribunal's Charter, had no previous standing in international law. In analyzing the alleged “conventional war crimes”, he eventually concluded that the evidence presented before the Tribunal was not sufficient to establish criminal responsibility.
In Pal's opinion, as the law then stood, it would be a war crime on the part of the victor nations to execute the accused without due process of international law.Footnote 18 According to him, the weakness of the adversaries benefitted the victors’ proclivities to continue the Trial unimpeded, and this indeed revealed that such determinations were never penetrated by a sense of legal obligation.Footnote 19 He therefore vehemently rejected any idea of justice which is at the mercy of the victors. Pal believed that one of the most ingenious reasons given for fixing the criminal responsibility on the accused is that through it the “character of the whole defeated nation will be amply vindicated”.Footnote 20 However, he asserted that it is human folly to assume that such responsibility will help in the promotion of good feeling between the individual citizens of the vanquished and the victor states. Indeed, he utterly dismissed hopes of any real and substantial contribution to the future peace of the world by the creation of such tribunals. Such objectives, he felt, could have been easily achieved by a “commission of enquiry for war responsibility”.Footnote 21
Pal also criticized the idea of individual responsibility based on the collective responsibility of a state, arguing that general international law excluded the individual responsibility of the person who performed the act as a member of the government.Footnote 22 He mentioned that, although such rules are not without exceptions, even for such exceptions to prevail there must be a special rule of customary law or an appropriate international treaty to hold individuals responsible, which never existed before the two world wars.Footnote 23 Thus, on the mere strength of conquest, a victor nation cannot make such acts criminal with retrospective effect and punish the individual authors of such acts in the name of “law”.Footnote 24 In this context, Pal brought forth the double standards and colonial hypocrisies of states. He explicated that between the two world wars, no explicit provisions were made in international law for holding individuals responsible for “reasons best known to them”, although recommendations in this respect came from various unofficial bodies and all those went unheeded by the states. He commented: “I cannot hold that this omission was not deliberate.”Footnote 25 He highlighted that it was only after World War II that the Allied nations felt it necessary to hold individuals responsible and only selective targeting was done.
Likewise, the firebombing of Japanese cities and the atomic bombing of Hiroshima and Nagasaki were not brought within the purview of the Tokyo Tribunal. Pal ascertained that, by not including the atomic bombings of Japan by the US, the judicial status of the Trial was impaired as it reflected selectivity in terms of ascribing responsibility.Footnote 26 For Pal, a victor's power under international law does not entitle the victor to sit on trial over the vanquished for “all his life's doings”, and it should be possible for both the victor as well as the vanquished to be able to bring to trial before an impartial court individuals who are accused of violating the laws and usages of war.Footnote 27 In Pal's Dissent, one can identify his appeal for a world order where states have sovereign equality and universal freedom.
Pal's Dissent also reflected on the modern state organization and democracy. Quoting Quincy Wright, Pal mentioned that the central complexity with modern state organization is such that it is extremely difficult to attribute responsibility for declaring war to any individual or group of individuals. He noted that in an age of democracy the effort to hold individuals responsible for a national declaration of war would frequently involve an indictment of the entire people.Footnote 28 Pal's idea of democracy can also be contextualized in terms of the armed conflicts, civil wars, and riots which are often the product of power politics. These power politics take different forms, such as the domination of powerful states, the politics of ideology, or the politics of majoritarianism. However, what about situations where democracy is only a facade to mask the will of a totalitarian regime? Or attributing responsibility to individuals in non-international armed conflicts [NIAC]? Pal does not ponder these questions.
Intrinsically linked with the idea of democracy is the existence/non-existence of an international community. The predominant idea that for international crimes to exist there must be an “international community”, and that the basic prescription of this community is the existence of peaceful relations between states, was contended by Pal. He highlighted that:
[E]ven now each state is left to perform for itself the distributive function. The basis of international relations is still the competitive struggle of states, a struggle for the solution of which there is still no judge, no executor, no standard of decision. There are still dominated and enslaved nations and there is no provision for peaceful readjustment without struggle.Footnote 29
While Pal felt that there was a need for the formation of an international community under the reign of law, it should be such that nationality and race find no place.Footnote 30As argued by one contemporary scholar, Pal was suspicious of a universal international community, he realized that in an unequal and unjust international world order there cannot exist “shared norms” declared by the society as a homogenous community.Footnote 31 In the “international community”, as it stood during the post-World War II era, the idea of the social utility of punishment held no value. Pal rejected the idea of individual reformation that is bound up with unjustified punishment. He underlined the nature of the international tribunals and affirmed that until the time that trials and punishments for any crime remain available only against “the vanquished in a lost war”, no deterrent and preventive effects can be achieved from the introduction of criminal responsibility.Footnote 32
In contemporary times, the manifestly selective justice and unequal power relations that exist within the International Criminal Court [ICC] have been criticized by several scholars. Pal's condemnation of the idea of global justice that emerged after the end of World War II can also be seen as reflective of the existing ICL mechanisms. In Part II of this paper I look at the relevance of Pal's Dissent in the light of the critique of the ICL regime in present times.
II. Contemporary relevance of Pal's Dissent
Although scarce, scholars who have worked on Pal's Dissent have different standpoints. While some recognize Pal as a champion of upholding the lost reputation of the Japanese, some see him as an outright apologist for Japanese imperialism.Footnote 33 Pal's Dissent also faces criticism because of its contemporary usage. In postwar Japanese domestic politics, right-wing polemicists have repeatedly used Pal's Ddissent as a powerful reinforcement for justifying Japan's aggression during that period.Footnote 34 Another commentator highlights his close ties with right-wing nationalism in India in the following words:
Although seen in the West as being something of a radical because of his anti-colonialism, Pal was essentially a conservative. The most obvious evidence of this was his relationship with his rapturous nationalist Japanese audiences, and his vociferous anticommunism, which was on full display in his dissent. Less well known was his close relationship during the war with Shyama Prasad Mukherjee (discussed in Nakazato Nariaki's book) who in 1951 went on to form the rightwing Hindu nationalist organisation Bharatiya Jana Sangh — forerunner of the BJP. So, drawing together the threads, Pal was not only an Indian nationalist, but also, Nakazato strongly hints, a Hindu nationalist.Footnote 35
However, some scholars note that the analysis of Pal's Dissent is often presented without a thorough examination. Instead, only the decontextualized conclusion that the Japanese suspects were not guilty is singled out.Footnote 36 Similarly, it is pointed out that the singular focus on the various personal factors driving Pal obscures the broader political significance of the Dissent.Footnote 37 Partha Chatterjee makes a nuanced argument:
Pal's dissenting judgment carried the insignia of a particular moment in the transformation of the global order in the era of decolonization. That moment has now passed. To understand the historical significance of that moment, we must resist the temptation to employ our current common sense as the yardstick with which to judge Pal's position.Footnote 38
Pal's Dissent offers an understanding of the international world order which was clouded with unequal power structures and Western hegemony. Pal cannot be compartmentalized into a particular school of thought as he was a product of a specific period in history that witnessed the heinous acts of colonial expansion and the subsequent freedom struggles. His Dissent therefore needs to be perceived in the light of his lived experiences.Footnote 39
With the development of the modern ICL mechanisms and the establishment of the ICC, critics over the years have acknowledged the necessity of the ICC and the ontological question is no longer posed.Footnote 40 In fact, the ICC was established precisely in ways to remedy many of the defects of the Tokyo Tribunal, particularly the issue of “victor's justice”. The ICC, therefore, presents itself as an independent institution that could rule on violations of the core crimes mentioned in the Rome Statute of the ICC, committed by any country. Hence, in this way, it claims to be universal and representative of the “international community”.
Yet, Pal's basic concern about selectivity still haunts the global justice system in a new guise. While the specific situation and world order that Pal analyzed in his Dissent no longer exist in a strict sense, the present ICL mechanism legitimizes and sustains the unequal power structures that helps further the North–South divide.Footnote 41 Although there is an established treaty today it is witnessed that the mechanism of triggering the jurisdiction of the ICC is patently discriminatory and largely controlled by a few powerful states. Similarly, scholars have also highlighted how the Office of the Prosecutor's [OTP] selection procedure lacks impartiality and reduces the likelihood of it being perceived as legitimate within affected communities.Footnote 42
Further, the massive power entrusted to the United Nations Security Council [UNSC] (of which three Permanent Member States are not yet parties to the ICC),Footnote 43 points towards the biased effect such provisions may have. Some states have opined that the power of referral and deferral entrusted to the UNSC was one of the most fundamental provisions that led them to reject the Rome Statute. India, for instance, stated during the Rome Conference that the provision on referral in the Rome Statute “assumed that the five veto wielding States did not by definition commit the crimes covered by the Statute of the Court, or if they did, they were above the law and possessed de jure impunity from prosecution”.Footnote 44 Another third-world state, Pakistan, was also not in favour of giving a role to any organ of the United Nations [UN], particularly the UNSC, in the functioning of the ICC. They feared that it might cloud the Court's objectivity since the UNSC is primarily a political body.Footnote 45 In fact, no single prosecution has taken place against the permanent five members of the UN despite their interventions in several third-world states such as Afghanistan,Footnote 46 Cambodia, Iran, Iraq, and Vietnam, which have led to mass atrocities.Footnote 47 Moreover, the alleged biases of the ICC towards the African states, and their withdrawalFootnote 48 from the Rome Statute in response, are worrying indicators. At the risk of oversimplification, it is worth noting the resemblance here: out of the P5, four nationsFootnote 49 jointly issued the Postdam Declaration in 1945.
As Pal highlighted how the bombing of Hiroshima and Nagasaki were never brought within the purview of the Tokyo Trial, relatedly, in present times, the list of crimes within the ICL mechanisms has been subject to varied criticisms. Kiyani pointed out that “apartheid is not an international crime, and that aggression is only optionally and conditionally a crime”, hence, “the assumption that the relevant legal sources for ICL are found largely in the American zonal trials after Nuremberg, but not in Islamic or Chinese law” are all manifestations of institutional historical injustice.Footnote 50 It is also astounding that no international tribunals were established or efforts made to try the brutal acts of colonialism.Footnote 51 The silence of ICL on these issues echoes Pal's critique of the idea of justice that was advanced by the victorious states at the Tokyo Tribunal.
For Pal, the culpability of individuals was much more than just one individual's responsibility.Footnote 52 Without justifying the wrongful acts of individual perpetrators or downplaying their individual responsibility, several commentators in present times have similarly argued that violence and war in several cases were no less a product of external forces, including the economic, political, and legal intervention of international institutions, and systemic political-economic forces manipulated by these institutions.Footnote 53 The idea of ICR which emerged after the two world wars displays a tendency to emphasize only individual agency, thereby overlooking structural causation. While this does not imply that individual perpetrators should not be held responsible, the idealization of ICR has the potential of naturalizing structural and organized sources of violence. It is only by uncovering the innate limits of the ICL regime that we can aim towards its progressive development for ending violence and impunity in the true sense.Footnote 54 Pal too cautioned against the myopic celebration of a Tribunal that failed to take into account the broader phenomenon that led to the wars in the first place and did only selective targeting, according to him, that was nothing but victor's justice.
Pal's critique of unequal power relations and dominance can no longer be seen purely in terms of a North–South divide. Post-colonial states are increasingly working against their people, taking extreme measures for securing majoritarian interests and eliminating all sources of dissent. As some scholars have highlighted, the self-referral mechanism in the ICC has been abused by many African states to induce judicial recourse against their enemies to legitimize state military operations and expand international standing. The self-referral cases by Uganda and Mali have been exemplified by certain scholars in this context.Footnote 55
This is interesting considering the fact that, while the third-world countries are seen as victims of domination within the ICC's power politics, they too are engaged in subduing and dominating individuals or groups within their domestic affairs.Footnote 56 It is essential to realize that in the contemporary era the idea of victimhood is not static any more, and the layers of domination are not mechanical.Footnote 57
III. Conclusion
The idea of victor's justice that was highlighted by Justice Pal during the early period of development of the ICL mechanism is still very much present in contemporary times, although in a new guise. Over the years, while the idea of domination has changed, the presence of the element of power and interest has become more conspicuous than ever.
Despite the shortcomings of the ICL mechanisms, it would not be prudent to reject outright the ICL regime. While the system has inherently been flawed and subjugatory in character, the possibility and benefits of reform through the progressive use of international law should not be ruled out.Footnote 58 Pal too was optimistic about the role of international law when he stated: “However impotent such law [international law] may be to afford any real protection, it at least does not legally place the vanquished at the absolute mercy of the victor.”Footnote 59 International law can be seen as a shield, however fragile, against the exercise of unrestricted power by powerful states.Footnote 60 For instance, the Preamble of the Rome Statute affirms that the “most serious crimes” that are of concern to the international community must not go unpunished and determines that it will put an end to “impunity for the perpetrators of these crimes”,Footnote 61 thereby reflecting hope for international peace and security.Footnote 62 The truth of the matter is that even in dominance, international law uses the language of emancipation.
