2. ‘Waging war against the King’

In November 1945, the British convened a court-martial at Delhi's Red Fort to try members of the anti-British Indian National Army for the treasonable crime of ‘waging war against the King’. The trial was intended to convey the message to ‘loyal’ troops in the Indian Army that rebellion was anathema, but it instead became a rallying point for the Indian independence movement.

The events addressed by the Red Fort trial had begun some four years earlier, in the days immediately after Lt.-General Yamashita's Twenty-Fifth Army broke through the British lines and, on 15 February 1942, compelled Lt.-General Percival to surrender Singapore to the Japanese. While the British and Australian prisoners of war were marched straight off to prisons and internment camps, some 40,000 Indian surrendered troops were gathered together at Farrer Park in south-central Singapore. According to testimony at the trial, a British officer, Colonel Hunt, formally handed these Indian troops over to a Japanese officer, Colonel Fujiwara. Fujiwara then presented them with a stark choice: either take their chances as prisoners of war, or switch their allegiance to the newly formed Indian National Army, which would fight alongside the Japanese. The trial records indicate that around half of them chose the latter option.

The Indian National Army went through two incarnations. The first was under Mohan Singh, a career officer who was elevated to commander-in-chief in April 1942, but, after disagreeing with the Japanese about the Army's status and independence, was relieved of his command at the end of the year. The second was under Subhas Chandra Bose, a well-known former Congress Party politician, who, after travelling from Japan to Singapore, assumed the command of the Army, and on 21 October 1943 proclaimed the formation of the Ārzī Hukūmat-e-Āzād Hind (the Provisional Government of Free India). Two days later, this government declared war on Britain and the United States, and then, from late 1943, started to deploy troops in Burma. The Army saw sporadic action around the Irrawaddy River and the Indian states of Manipur and Nagaland – notably at Mount Popa, Imphal, and Kohima. After setbacks, parts of the Army were compelled to surrender to the Allies from April 1944 on. Bose himself was killed in an air crash at Formosa a fortnight before the end of the war.

Shortly after the war's conclusion, the British decided that it was necessary to settle accounts with the Indian National Army in order to maintain the discipline of the Indian Army – to not do so would ‘betray weakness . . . which would react adversely on the ability of Government to govern successfully’.Footnote ² They thus convened a series of courts-martial of Indian National Army officers and men in late 1945 and early 1946. The most important of these trials began on 5 November 1945 in a British Army barracks located inside Delhi's Red Fort. The three defendants – Shah Nawaz Khan, Prem Sahgal, and Gurbakhsh Singh Dhillon – were senior officers who, as well as switching their allegiance from the Indian Army to the Indian National Army, were also alleged to have been involved in the commission of crimes against their subordinates. All three were charged with ‘waging war against the King’, the equivalent of treason set out in Section 121 of the Indian Penal Code; Dhillon was also charged with murder, and Khan and Sahgal with ‘abetment of murder’.

At first, this appeared to be a straightforward domestic case of treason. As the chief prosecuting counsel, Advocate-General Sir Naushirwan Engineer, informed the court:

But as all involved recognized, Engineer faced a significant tactical problem. In order to establish his case for treason, he had to present evidence of the existence of the Indian National Army – news of which was rumoured, but which the British wartime censors had done their utmost to suppress. So, in the process of presenting battle reports, operation orders, command structures, reorganization policies, intelligence summaries, situation reports, disciplinary notes, supply manifests, staff allotments, security passwords, diary entries and witness statements, Engineer also managed to conjure up victories and defeats, retreats under fire, captures of arms and casualties in battle.Footnote ⁴ In short, he transformed what had been a ghost army, a chimera, into the real thing.

This had an electrifying effect on Indian public opinion. The evidence laid out by the prosecution showed that Indians, under the nose of the embattled imperial authorities, had formed their own army, tens-of-thousands-strong, commanded by their own nationals, which had fought, and sometimes beaten, Allied forces in Burma and Northeast India. The trial of the three – who, fortuitously, happened to be Hindu, Moslem and Sikh – not only became a nationalist symbol for the independence movement, but also managed to sporadically unite this movement across political and religious lines. There followed months of strikes, demonstrations and mutinies in support of the Indian National Army defendants. As Jawaharlal Nehru wrote in 1946:

In other words, the proceedings, conceived by the British to send a salutary message, had precisely the opposite effect.

It was in this febrile atmosphere that the chief defence counsel, Bhulabhai Desai, took the floor. Over the course of two days he delivered a speech, without notes, which effectively turned the case on its head. Building on evidence presented by the prosecution – which, he noted, had helpfully ‘proved the formation of the Provisional Government of Free India, the raising of forces by it, and the putting of these forces in the field against Britain’Footnote ⁶ – he argued that the issues were matters for public international law, not for British Indian criminal law. He noted that the Indian National Army was a properly constituted and self-governing army, run by Indian officers, with its own disciplinary code, ranks, uniforms and regalia, just like the British-run Indian Army on which it was closely modeled.Footnote ⁷ This Army, he stated, had two aims: the liberation of India from British rule, and the wartime protection of Indian populations in Burma and Malaya.Footnote ⁸ In short, it was an independent entity fighting for legitimate aims, and not, as the prosecution contended, a Japanese-run fifth column.

Furthermore, Desai argued, the Provisional Government of Free India, which Bose had proclaimed in October 1943, was a properly constituted government with command over resources and territories, including the Andaman and Nicobar Islands which had been ceded to it by Japan.Footnote ⁹ These features amounted to statehoodFootnote ¹⁰ – statehood that had been recognized by Japan and a number of its allies, such as Burma, ‘free’ China, Croatia, Manchukuo, and Siam. This government had then declared war on Britain and the United States, and thereafter assumed the rights of a belligerent power. In sum, the Indian National Army and the Provisional Government of Free India were operating within the bounds of public international law, the court-martial had no jurisdiction over relations between belligerent states, and the defendants, having acquired the rights and immunities endowed by the laws of war, had no case to answer.

3. A debt of gratitude

In the course of making these arguments, Desai returned repeatedly to the question of allegiance that was at the heart of the trial. This issue had first arisen within the first minutes of Engineer's opening address, and it resonated throughout the proceedings. Engineer had stated:

The violation of the alleged ‘duty of allegiance’ was twofold: first, the accused had thrown in their lot with the enemy; and second, that as former Indian Army officers they had breached the ‘oath of allegiance’ to the ‘King-emperor’ (taken when joining up) by swearing a different ‘oath of allegiance’ to the Provisional Government of Free India when joining the Indian National Army.

In the common law tradition, the idea of allegiance, rooted in feudalism, initially presumed a perpetual or eternal relationship between ruler and subject. The natural law advocate, William Blackstone, in his first book of Commentaries of 1765, thus argued that the monarch and the subject were bound by a social tie from birth, the monarch offering protection and the subject offering allegiance:

In short: born a subject, always a subject. Or as Engineer, also striking a feudal note, put it, subjects were bound to the Crown ‘at all times and in all circumstances’.

By the nineteenth century, though, the doctrine of perpetual allegiance was being challenged in the common law world, not least by advocates in the United States, whose inhabitants, of mostly immigrant stock, were still occasionally being conscripted or prosecuted by the states from which they had originally hailed. The 1868 Expatriation Act thus renounced eternal allegiance by asserting that the ‘claim of foreign allegiance should be promptly and finally disavowed’ for American citizens, thereby removing competing claims to loyalty by other states.Footnote ¹³ Similar changes took place in England and Wales, but with an important qualification introduced by the 1903 Rex v. Lynch decision – arising from the treason trial of Irish MP Arthur Lynch, who had fought the British in the Boer War – which precluded someone from becoming a citizen of an enemy state during wartime.Footnote ¹⁴ Thus, a conditional shift from perpetual to transferable allegiance had taken place, although the essential relationship between the state and the subject described by Blackstone nonetheless remained undisturbed.

At the Red Fort trial, the task faced by Desai and the defence team was to find a legitimate, non-treasonable exception to the duty of allegiance during a war. Consciously or not, they gravitated towards an older argument, advanced some three centuries earlier by Thomas Hobbes. The question posed by the situation in Singapore, February 1942, was whether subjects still owed a duty of allegiance to the state if the state had left them unprotected from imminent peril. Hobbes’ answer was that in certain life-threatening circumstances – such as when a sovereign is defeated by a foreign power,Footnote ¹⁵ or when subjects are taken as prisoners of warFootnote ¹⁶ – they do not. He wrote:

This statement indicates, first, that the tie of allegiance may be cut as soon as the sovereign relinquishes protection of the subject (thus exposing the subject to violent harm), and second, that the subject is their own judge of whether that protection has been removed (‘wheresoever a man seeth it’).Footnote ¹⁸ This right to renounce allegiance, in Hobbes’ view, did not extend to political agitators who challenged the sovereign's authority as a matter of choice rather than compulsion: they were but ‘fooles’, who undermined the rule of law while gambling with their own lives.Footnote ¹⁹ No, this right was granted only to subjects who, for the most part, were victims of circumstance – those who, through little fault of their own, were placed in immediate danger by the removal of the state's protection. It was this Hobbesian exemption from the duty of allegiance that the Red Fort trial defence team exploited in their defence of the Indian National Army officers.

During the trial, the accused and witnesses insisted that a specific event – the fall of Singapore – had convinced them that Britain was no longer capable of protecting their interests, and had therefore forfeited its claim to their allegiance. As Dhillon told the court, ‘I felt like one deserted by the British in a state of . . . helplessness’.Footnote ²⁰ By all accounts, the decisive moment was the gathering at Farrer Park, when Colonel Hunt transferred the Indian troops to Colonel Fujiwara, and the latter presented them with a choice between loyalty to Britain and loyalty to India. Forced to choose between King and Country, Shah Nawaz Khan told the court, ‘I decided to be loyal to my country.’Footnote ²¹

Shortly after the trial, defence counsel Kailash Nath Katju recalled, pace Hobbes, that:

For the defence, the allegiance so peremptorily commanded by the Raj, and so summarily punished if abandoned, could be – and was – legitimately renounced.

It was precisely this issue of loyalty that had defined Bhulabhai Desai's own career. In 1928, as an advocate based in Bombay, he appeared before the Broomfield Committee on behalf of Gujarati farmers involved in the civil disobedience campaign, Bardoli satyagraha. Two years later, he spoke at a meeting protesting the conviction of its leader, Vallabhbhai Patel, where – rehearsing points he would make 15 years later at the Red Fort – he reportedly declared that, ‘if it is patriotic to lay down one[’]s life that Germany may not govern England, how can it be less patriotic if any one of us may lay down his life that another may not govern India (prolonged cheers)!’Footnote ²³ He was imprisoned by the British in 1932. After his release, he rose quickly through the ranks of the Indian National Congress – as did another political activist further to the left, Subhas Chandra Bose.

By the mid-1930s, disagreements within Congress over the pace and tactics for achieving independence coalesced around the British constitutional re-arrangements envisaged by the federal components of the 1935 Government of India Act. The conservative wing of the party, led by Mohandas Gandhi and backed by senior party stalwarts including Desai and Patel, found itself at odds with the more militant modernizing wing, led by Bose. A showdown took place in the first months of 1939, when Bose, challenging Gandhi's authority, stood for and won a second Congress presidency. This proved to be a hollow victory. Gandhi's stalwarts, including Desai, resigned from the Working Committee – Congress's highest decision-making body – leaving Bose with little but his own diminishing political capital. Having regained its initiative, Gandhi's faction later took disciplinary action against Bose, reducing him to being a ‘four anna’ party member.Footnote ²⁴ He continued to campaign for immediate independence from Britain, and, after the war's outbreak, for an end to India's participation in the British war effort. In July 1940, the colonial authorities imprisoned him for sedition under the newly-enacted 1939 Defence of India Act. Bose escaped from house arrest in January 1941, and made his way to Germany, then Japan, and then to Singapore, where he took up the leadership of the Indian National Army.

Desai, meanwhile, was at the pinnacle of his career, as the leader of Congress in the Legislative Assembly. At the outbreak of the war, Britain's unilateral declaration that India was at war with Germany, made without consultation with or the approval of Indian leaders, had exposed the deficiencies of Congress's gradualist strategy, and had stiffened its resolve to seek rapid independence. Matters came to a head in November 1940 over the British-sponsored supplementary Finance Bill, which pledged additional Indian revenues to the war effort. Congress opposed it, and the Bill was not passed. Desai, who spoke in opposition, declared: ‘We will not fight as instruments of British imperialism to maintain our own subjection.’Footnote ²⁵ The war, he said, had been ‘imposed’ on India, and unless the war was made India's war, ‘it is impossible that you will get India's support’.Footnote ²⁶ A few weeks later the British imprisoned him, as they had Bose, under the Defence of India Act. He was released in September 1941. Towards the end of the war, his political star dimmed after it emerged that he had brokered a secret (and, many thought, indefensible) power-sharing deal with the Muslim League, known as the Desai-Liaquat Ali Pact. When the British mooted the trial of the Indian National Army officers in 1945, he, along with Gandhi, Nehru, and other party leaders, seized the chance to co-opt the nationalism of the disarmed and scattered Indian National Army, without the inconvenience of having to deal with the by-now deceased Bose.

At the trial, the arguments Desai put forward at the Red Fort were remarkable for being so unlike the usual defences presented in treason cases. Defence counsel usually accepted that national security was paramount, but argued that the accused was either innocent or insane. Desai took a completely different tack. He challenged the very premise of treason by arguing that during a war of liberation the justice of the challenger eclipsed the security of the challenged, and that formal allegiances could thus be renounced.

Having taken the argument this far, he built on his central claim that actions carried out during a war of liberation were subject not to domestic criminal law, but to public international law. He noted that this body of law had not always served the interests of states fighting for their liberation. Before the twentieth century, he said, it permitted only sovereign – not colonized – states to legitimately declare or wage war, but:

Yet he insisted that international law had since moved on, and that it accepted the legitimacy of wars of national liberation:

Turning the charges back against the prosecution, Desai argued that the case was not really about treason at all: ‘What is now on trial before the Court is the right to wage war with immunity on the part of a subject race for their liberation.’Footnote ²⁹ Thus, from out of a treason trial emerged a critique of the very idea of treason. This approach had a profound impact on the struggle for independence, and strongly influenced Indian advocates and judges, one of whom, Radhabinod Pal, would take these arguments about security and justice to the International Military Tribunal for the Far East, established a month or so later.

The defence arguments failed to sway the court-martial, however. On 31 December 1945, it found all three men guilty of ‘waging war against the King’ and one guilty of ‘abetment to murder’, and sentenced them all to transportation (imprisonment). Riots ensued. Commander-in-Chief Claude Auchinleck, as the confirming officer, then reduced the sentence to cashiering and forfeiture of arrears of pay and allowances. He was under no illusion that this was anything other than a retreat under fire, acknowledging in a memo to senior British commanding officers that, ‘every Indian worthy of the name is today a “Nationalist”’,Footnote ³⁰ and that the attempt to enforce the sentence would have had ‘disastrous results’, most likely setting off ‘a violent outbreak through the country’ and ‘active and widespread disaffection in the Army’.Footnote ³¹

The British had gone too far, succumbing to their own fears of loss of control – the situation described by Rebecca West as the ‘desert haunted by fear’. They had mounted the trial intending to cool the embers of incipient loss of morale in the Indian Army, only to throw petrol on the fire of Indian nationalism. The harm done was only to themselves.

4. Treason in an international form

The International Military Tribunal for the Far East, convened to try the Japanese leaders, was designed first and foremost to meet concerns about international security. The Charter and Indictment thus placed greatest stress on the substantive charge of ‘crimes against peace’ and its attendant mode of liability, ‘common plan or conspiracy’. Yet for all its novel features, the Tokyo Tribunal, along with its sister court in Nuremberg, was essentially an internationalized court martial (hence ‘international military tribunal’) considering an internationalized charge of treason against the security of states (hence ‘crimes against peace’).

To trace the connection between the treason trials and international trials for the crime of aggression we must leave post-war Asia for a while, and examine some earlier proposals to codify international criminal law – proposals that further illustrate Rebecca West's point that the pursuit of security at all costs is likely to have unintended consequences. At the end of the First World War, French lawyers considered prosecuting Wilhelm II and his circle for starting the First World War, and, in the ensuing decades, Soviet lawyers contemplated prosecuting Adolf Hitler and his minsters for embarking on the Second World War. Both groups nursed the idea of applying the concept of complicity to the international crime of aggression, and drew their ideas from domestic criminal law – the French from the 1918 treason trials of Louis Malvy and the ‘Bonnet Rouge gang’, and the Soviets from the 1936–38 Moscow trials of the ‘old Bolsheviks’. As the French and Soviets perceived it, international criminal law was a projection of criminal law into the international arena, with the attendant theories of liability, and presumption of the duty of allegiance to the existing authority, being transmitted from one to the other.

Why did they look to the law on treason? Domestic criminal law and international criminal law both arose out of a singular preoccupation with security – the former with the punishment of offences against the state, and the latter with the punishment of offences against the international society of states. Consequently, in international criminal law's formative years, prosecuting powers created a hierarchy of international crimes, with the crime of aggression at the top (because this was the crime that most directly threatened the global order), and the crimes devolving from aggression – war crimes and crimes against humanity – in a supplementary role. In addition, domestic criminal law offered enticing models for international modes of liability, such as complicity, which enabled prosecutors to tie civilian and military leaders into crimes planned by groups of people or carried out by subordinates. What can be seen, then, is the transposition of the law governing crimes against the security of the state – treason – into international criminal law, and the emergence of the idea that international crimes represented international treason against the global order.

5. Trying the ex-Kaiser

The linked concepts of ‘complicity’ to commit ‘crimes against peace’, which later appeared at the Nuremberg and Tokyo trials, can first be discerned in discussions that took place in November 1918, when David Lloyd George and Georges Clemenceau publicly launched the idea of trying the just-abdicated Wilhelm II for starting the First World War and orchestrating war crimes. A few weeks after the Armistice, Lloyd George declared:

This represented a radical departure from the regulation of war embodied in the Geneva and Hague Conventions, and contained within it the innovative idea that embarking upon an aggressive war was a crime, for which a head of state could be held personally responsible.

When considering Wilhelm II's trial, the entente leaders had already been furnished with one of the first officially sanctioned legal reports making the case for the ex-Kaiser's indictment: Ferdinand Larnaude and Albert Geouffre de Lapradelle's Examen de la responsibilité pénale de l'empereur Guillaume II, produced under the auspices of the French War Ministry in November 1918. In it, the authors argued that Wilhelm II, who had exercised constitutional power until his abdication that same month, was criminally responsible for crimes committed over the course of the war. But under what jurisdiction could he be prosecuted? Believing domestic avenues to be closed to them, they turned to the international sphere. There, though, the old approaches to crimes of war were no longer adequate. New legal instruments had to be created, and in the process, they declared, ‘A new international law is born.’Footnote ³³

Of the proposed charges, the greatest departure from previous practice was the attempt to hold the ex-Kaiser responsible for embarking on war. Here, Larnaude and de Lapradelle made an intriguing link between existing domestic law and the proposed international law:

This comparison between ‘the violation of the public peace of a state’ with ‘an attack on the peace of the world’ is one of the first clear attempts to connect treason against the state with treason against the global order, and is likely to have been inspired by a series of trials convened in Paris in the final year of the war. First, in February 1918, Paul Bolo, who had handled German funds, was sentenced to be shot for subsidizing anti-war propaganda within France. Then, in May 1918, Émile-Joseph Duval and others involved with the anarchist paper Le Bonnet Rouge were sentenced to execution or hard labour for complicity in treasonable attempts to undermine the war effort. Then in July the same year, Louis Malvy, the once-powerful Radical-Socialist Minister of the Interior, was tried by his peers in the Senate for, among other things, his Ministry's financial support for Le Bonnet Rouge. As it turned out, Malvy, accused of treason, was convicted of the lesser charge of actions that ‘ignored, violated and betrayed his duty’ as minister, and banished from France for five years.

Many of the treason charges brought at these trials alleged complicity between the defendants or between the defendants and the Germans, and this approach is likely to have inspired Larnaude and de Lapradelle, who contemplated charging the ex-Kaiser for complicity in plans to embark on war and orchestrate war crimes. They wrote:

All the same, they admitted that there were difficulties in bringing complicity charges against groups of people for acts committed in the course of the war. Even if the entente powers managed to capture both the ex-Kaiser who had given the general orders and the military personnel who had carried them out, this might prove to be counterproductive, because:

These ideas coalesced in Article 227 of the Versailles Treaty, which announced the formation of a ‘special tribunal’ to try the ex-Kaiser for ‘a supreme offence against international morality and the sanctity of treaties’. Footnote ³⁷ The choice of modes of liability was left to the prosecutors, while the choice of punishment was left to the judges. The legal basis on which they were expected to make a decision remained an open question, for as the US Secretary of State Robert Lansing observed, ‘Manifestly the tribunal . . . is not a court of legal justice, but rather an instrument of political power which is to consider the case from the viewpoint of high policy and to fix the penalty accordingly.’Footnote ³⁸ Although this ‘special tribunal’ was never convened, the French trials of former politicians and their associates for treason at the end of the war had already proved what Lansing had tried to deny: that tribunals could be both courts of legal justice and instruments of political power. It was this beguiling combination that attracted jurists who, in the depths of the Second World War, returned to the idea of trying enemy leaders for international crimes.

6. The renewed search for security

When the Allied powers began to develop policies for dealing with the German and Japanese leaders after the Second World War, their approach was governed by an overriding concern about security, just as it had been after the First World War. This was most clearly illustrated by the Soviets, who during the war years had gravitated towards the idea of convening an international tribunal to try the leaders of the Axis powers for the crime of aggression, modelled on the 1936–38 Moscow trials of the ‘old Bolsheviks’ for purported treasonable conspiracies against the Soviet state. The modes of liability used at the Moscow trials for dealing with ‘counter-revolutionary’ crimes would later be transplanted into the Nuremberg and Tokyo tribunals convened to deal with German and Japanese ‘crimes against peace’.

In July 1938, the Procurator General, Andrei Vyshinskii, set out his vision for the future of Soviet legal doctrine – both domestic and international – in a Pravda article entitled, ‘About tasks of the Soviet socialist law science’.Footnote ³⁹ Socialist law, he argued, provided the instruments necessary for rooting out internal and external threats to Soviet society. Of these instruments, the doctrine of complicity

This approach shaped the three Moscow ‘purge’ trials – conducted in 1936, 1937 and 1938 respectively. While they were by no means the first to convict people for political crimes against the Soviet state, they were distinctive in targeting people who were, or who had once been, at the very pinnacle of the party hierarchy – in other words, leaders. Furthermore, at each successive trial, the prosecution, led by Vyshinskii, alleged that the defendants had been part of ever-widening circles of conspiracy directed against the Soviet Union. At the first two, the prosecution relied on Article 17 of the 1926 Russian Criminal Code (amended in 1930), which identified three types of participants in a conspiracy: ‘instigators’, ‘accomplices’ and ‘perpetrators’.Footnote ⁴¹ Yet this did not quite capture the magnitude of the alleged crimes, and in March 1937, after the second trial, the journal Sotsialisticheskaia Zakonnost’ (Socialist Legality) reported the drafting of a new criminal code which included a fourth category of conspirator – ‘organizer’ – who would be punished more harshly than a ‘perpetrator’, even if the crime was not carried out. Footnote ⁴² This was a refinement of the premise, apparent throughout the trials, that planning a crime was just as serious as perpetrating one.

At the 1938 trial, Vyshinskii expanded further on the question of complicity. He began by asking to what extent the accused would be held answerable for the crimes committed by the conspiracy, and answered:

He then addressed the problem of individual intent:

To prove complicity, then, a prosecutor was not required to prove each individual's intent, but only to prove the common purpose of the conspiracy – their collective will to commit a crime:

It was this framing of the idea that would be taken up by the Soviet criminologist Aron N. Trainin and transmitted to the Nuremberg and Tokyo trials.

7. Trainin on complicity

Directly inspired by Vyshinskii's Pravda article, Trainin began work on the first book on the Soviet doctrine of complicity, Uchenie o souchastii (Doctrine of complicity), published in 1941, which provided legal cover for Vishinskii's deployment of the doctrine against internal threats.Footnote ⁴⁶ Shortly after the book's release, the Germans invaded the Soviet Union, and Trainin turned his attention to the ways in which the doctrine might also be applied to external threats. Two years later, on 26 August 1943, the Soviets broadcast a radio piece entitled ‘The responsibility for Nazi crimes’, based on an article Trainin had written for the journal War and the Working Class; the following day, the Soviet foreign press agency Tass distributed an English-language transcript through its Soviet embassies abroad.Footnote ⁴⁷ The Soviets were clearly inviting the Allies to consider some of the legal concepts that might be deployed in the future handling of the German leaders.

Trainin argued that although political responsibility for waging aggressive wars resided with the state, criminal responsibility must necessarily rest with the leading individuals vested with its authority. Hitler, his cabinet and the heads of the German government were the ‘most dangerous and most vicious body of international offenders’Footnote ⁴⁸ because, he wrote, they ‘took the lead in preparing, organising and perpetrating the most heinous crime in the history of the human race, the perfidious attack on the Soviet Union’.Footnote ⁴⁹ In other words, Trainin grasped the essential point that waging war was a crime necessarily committed by leaders.

Moreover, in addition to the politicians and ministers, Trainin also listed the financial and industrial magnates who had used their economic clout to underwrite the Nazi regime, and it was in relation to them that he broached the doctrine of complicity. Using the same formula that had been advanced at the Moscow trials and reiterated in his book on complicity, he argued that irrespective of whether the magnates had direct personal connections with the Nazi leadership, the ‘individual members of a gang or group may not be known to one another and may yet be responsible for all the crimes the gang or group commits’.Footnote ⁵⁰ Trainin's amalgam of ideas, which highlighted both the criminality of aggressive war and the German leaders’ conspiracy to commit it, was highly significant. By fusing the charge of aggression with an internationalized mode of liability, he laid the groundwork for a trial of groups of national leaders for embarking on aggressive war. It was precisely these two linked concepts that were later instituted at the Nuremberg and Tokyo tribunals as ‘crimes against peace’ and ‘common plan or conspiracy’.

A year after the broadcast, the Soviets relaunched Trainin's proposals, this time as a book, Ugolovnaia otvetstvennost’ gitlerovtsev, published in Moscow in July 1944 (and translated into English the following year as Hitlerite responsibility under criminal law). With the end of the war in sight, Western officials were beginning to consider the problem of how to deal with the German leaders, and started to focus on Trainin's work. What especially caught their eye was the prominence he gave to the offence he now called ‘crimes of the Hitlerites against peace’.Footnote ⁵¹ He reiterated his point that these were crimes for which the Germans were individually responsible and added that those who planned and carried out aggression were committing ‘the most dangerous international crime’ of them all.Footnote ⁵²

He admitted that existing international criminal law provided little guidance for handling crimes such as aggression, ascribing the ‘extreme meagreness’ of this area of law to the ‘aggressive imperialist rulers who had the cause of peace under constant menace’.Footnote ⁵³ But if international law were to be used in conjunction with national criminal law, then there would be sufficient legal basis for the punishment of the ‘Hitlerite clique’ for their international crimes of aggression and war crimes. Soviet criminal law, for example, already provided a useful model for prosecuting groups of people. He observed that the complicity doctrine had been used successfully against ‘the anti-Soviet bloc of Right Wing and Trotskyites’ at the Moscow purge trials,Footnote ⁵⁴ and even quoted Vyshinskii's aforementioned comments about the theory at the trial of Bukarin, Rykov and others in 1938.Footnote ⁵⁵ Before long, the doctrine of complicity – used against those accused of committing treason against the Soviet state – was put to work against the German and Japanese leaders accused of committing treason against the society of states. Which brings us back to the Tokyo Tribunal.

8. Colonial themes at Tokyo

This trial was established to try Japan's wartime leaders, and organized around the linked concepts of ‘crimes against peace’ and ‘common plan or conspiracy’. But just as the treason trial at the Red Fort had given rise to Bhulabhai Desai's argument that the concept of treason could not be applied to a war of liberation, so this internationalized treason trial inspired Radhabinod Pal's argument that the ‘crimes against peace’ charge could not be applied to the struggle against colonialism.

The Allied prosecutors, tasked with punishing the Japanese and underwriting the old imperial order in East and Southeast Asia, placed heavy emphasis on ‘crimes against peace’, and conspiracy to commit them. Of the Indictment's 55 counts,Footnote ⁵⁶ the first 36 dealt with wars of aggression: count 1 set out Japan's conspiracy to dominate East Asia and the Pacific and Indian Oceans, counts 2–4 addressed subsidiary aggression-related conspiracies, and counts 6–36 dealt with Japan's ‘planning and preparation’, ‘initiation’, and ‘waging’ of aggressive wars against the eleven prosecuting powers (plus Thailand and Mongolia). Count 5 was the most extravagant of them all, charging Japan with conspiring with its Axis allies to dominate the whole world.Footnote ⁵⁷

Throughout the proceedings, the prosecutors accorded far more weight to the charge of ‘crimes against peace’ than to the charge of war crimes. As the New Zealand associate prosecutor Ronald Quilliam wrote:

By the end of the trial, the prosecution had brought no less than 756 separate aggression-related charges against the defendants.Footnote ⁵⁹

The prosecutors placed equally heavy stress on ‘common plan and conspiracy’, for the simple reason that they lacked the evidence with which to establish each defendant's personal responsibility for substantive crimes. Instead, their practice was to first establish a defendant's connection to the conspiracy, and then use membership of the conspiracy to infer personal responsibility for substantive crimes. As the British associate prosecutor, Arthur Comyns Carr, explained in court, from the moment a defendant – as ‘leader’, ‘organizer’, ‘instigator’ or ‘accomplice’ – was proved to have joined the conspiracy, to the moment, if any, he was proved to have left it, he was guilty, as the principal, not only of the conspiracy, but also of all substantive crimes committed by himself or any other person in the execution of the plan.Footnote ⁶⁰ This, he stated, made it unnecessary to prove a defendant's direct participation in substantive crimes, ‘provided they occurred after we prove that he joined the conspiracy, and were within its scope, and he is not shown to have repudiated the conspiracy at that date’.Footnote ⁶¹ He continued, ‘I do not think it would be helpful to deal with each accused count by count, which would involve endless repetition’,Footnote ⁶² and that ‘if we have . . . given you sufficient evidence to show that at the date in question each named accused had joined the general conspiracy, we submit that that is enough’.Footnote ⁶³ (This Vishinskiite approach was too much for the American defence lawyers: one, John Brannon, counsel for Sato Kenryo, said that conspiracy was a way by which ‘a conviction can be had for the commission of an offense without any evidence pointing to actual participation’;Footnote ⁶⁴ while another, Ben Bruce Blakeney, representing Tōjō Hideki, said: ‘the “conspiracy” has appeared long since to be wholly constructive, the liability purely vicarious’.Footnote ⁶⁵ )

All the while, the issue of colonialism hung like a pall over the proceedings. It was no small irony that at the very time the Allied prosecuting powers were framing the charges of ‘crimes against peace’ at Tokyo, some of them were also fighting their way back into their old colonial possessions in Asia. In a few places, such as Indo-China, they were even assisted in this task by the departing Japanese – effectively, a baton-change from one occupying power to another. So when French colonial officials (ousted by the Japanese in 1941) returned to Hanoi in August 1945, they were greeted by violent anti-French demonstrations, held back by Japanese troops.Footnote ⁶⁶ Similar happened in Netherlands East Indies, when, at the end of the war, the invading British forces used the retreating Japanese troops to protect oil installations against a new military threat: the Indonesian nationalist forces led by Sukarno and Hatta.Footnote ⁶⁷ (The fact that the British had used Indian troops in Indonesia was a controversy that, back in India, intersected with the controversy over the trials of Indian National Army members.)

In May 1946, Radhabinod Pal, who, during the war years had served intermittently as an officiating judge at the Calcutta High Court, and then as Vice Chancellor at the University of Calcutta, arrived in Japan. He had first-hand experience of the nationalist tumult unleashed by the Indian National Army trials. Just six months earlier in Calcutta, on 22 November, the police killed a student at a protest against the proceedings at the Red Fort. This sparked city-wide riots that lasted days, in which many more died. Subhas Chandra Bose's brother, Sarat Chandra Bose, appealed for calm. Pal and Syama Prasad Mookerjee, leader of the Hindu Mahasabha party, visited the area where there had been clashes between the police and students, and stayed with the students for most of the night.Footnote ⁶⁸ The following day, the Statesman newspaper carried a photograph of Pal, Mookerjee, and the Governor of Bengal, R.G. Casey, at the same site.Footnote ⁶⁹ (Any appearance of unanimity between Casey and the other two was entirely superficial: that same year, Casey had walked out on a speech being made by Pal, which had referred to the duty to uphold the cause of Indian freedom, and was later involved in the decision to not reappoint him as Vice Chancellor.Footnote ⁷⁰ )

When Pal took up his post at the Tokyo Tribunal, a month or so after the other judges, he immediately questioned the validity of the ‘crimes against peace’ charge.Footnote ⁷¹ This altered the dynamic between the other judges, and in time three of them – Henri Bernard of France, Bernard Röling of the Netherlands, and William Webb of Australia – also began to express reservations about the charge of ‘crimes against peace’ and ‘common plan or conspiracy’. The prospect of a unanimous judgment began to ebb away.Footnote ⁷² Those judges who were committed to upholding the ‘crimes against peace’ charges led by three British Commonwealth judges, from the United Kingdom, Canada and New Zealand, observed this process with alarm. In their view, the crimes set out in the Tokyo Charter were not open for debate: the sole reason for setting up what the British judge, William Patrick called ‘this portentous institution’ was to declare that war was a crime and that individuals could be held responsible for it.Footnote ⁷³

News that the bench was beginning to split over the issue of Japan's responsibility for the war appalled senior officials back in the home capitals. The trial had been conceived, at least in part, to bolster the authority of the prosecuting powers in the Asian colonies, from which they had been so abruptly and violently ejected by the Japanese in 1942. The failure of the trial, wrote Foreign Office Assistant Under-Secretary Esler Dening in London, would be ‘little short of disastrous’, because the prestige of the prosecuting powers, already damaged in the region by the military debacles at Pearl Harbor and Singapore, would be further damaged.Footnote ⁷⁴ ‘Here we have a predominantly Western tribunal sitting in the Far East to try Japanese war criminals’, he wrote. ‘If the tribunal fails to fulfil its task, Western justice will become the laughing-stock not only of Japan but of the Far East in general.’Footnote ⁷⁵ Another British official, Frederick Garner, concurred, stating that it would deliver ‘a shattering blow to European prestige’ and ‘proclaim to the world that Japanese militarism had been justified since we had tried to convict it and failed’.Footnote ⁷⁶

What then was Pal's rationale for questioning ‘crimes against peace’? Like Desai before him, he took as his starting point the differing interests of the powerful states and their colonies. He argued that the criminalization of aggression was premature because it presupposed the existence of a genuine international community united by common interests and capable of offering alternatives to war as a method of resolving disputes.Footnote ⁷⁷ In the absence of this community, states would continue to pursue their partisan national interests by force of arms. He was of the view that the Allies’ motives for creating the new charge of ‘crimes against peace’ were therefore highly suspect, especially considering their own history of violence towards the non-Western nations.Footnote ⁷⁸ Instead of promoting universal values, these nations were perhaps merely serving their own narrow interests, such as maintaining the status quo – ‘the very status quo’, he wrote, ‘which might have been organized and hitherto maintained only by force by pure opportunist “Have and Holders”’.Footnote ⁷⁹

If this was the case, then there was good reason to be concerned about the implications of the ‘crimes against peace’ charge for the ‘dominated’ nations. Pal drew particular attention to the American chief prosecutor Robert Jackson's statement at the Nuremberg Tribunal that, ‘whatever grievances a nation may have, however, objectionable it finds the status quo, aggressive warfare is an illegal means for settling those grievances or for altering those conditions’.Footnote ⁸⁰ In other words, aggressive wars were treasonable acts against the international order. This, as Pal recognized, was effectively a call for the paralysis of international affairs, and by implication the criminalization of the struggle against colonialism. He considered this too high a price to pay for mere security, because, he wrote, the dominated nations ‘cannot be made to submit to eternal domination only in the name of peace’.Footnote ⁸¹ This, of course, was precisely Desai's point.

When it came to issuing judgment, Pal, following the logic of his rejection of ‘crimes against peace’ charges and the ‘common plan or conspiracy’ idea, rejected the authority of the Tribunal in toto, stating that all the charges brought against the accused were illegitimate, and that ‘each and every one of the accused must be found not guilty of each and every one of the charges’.Footnote ⁸²

Back in newly independent India, Jawaharlal Nehru was dismayed: ‘In this judgment wild and sweeping statements have been made with many of which we do not agree at all.’Footnote ⁸³ Not that senior Indian ministers had not known Pal was going to dissent – he had already told them soFootnote ⁸⁴ – it was just that they had not expected him to dissent on such all-encompassing grounds. Pal's repudiation of the criminalization of challenges to the status quo was untimely, appearing just as the new government was trying to create a breathing space for itself by cultivating better relations with the other prosecuting powers. Krishna Menon, then Indian High Commissioner in London, advised that, ‘it is most desirable that we take some steps to disassociate ourselves from the views of Justice Pal which [are] not shared by us and may well put us in the wrong’ with Britain and the others.Footnote ⁸⁵ But as it turned out, the powers chose to ignore Pal's dissent, and there the matter rested.

9. Security and justice

Indian jurists in the 1940s questioned the very premise of treason – in both its domestic and international forms – by asserting the right of the colonized to wage war against the colonizer. What was required, they argued, was a radical reordering of global priorities, with justice taking precedence over security rather than the other way around. Yet their approaches to how this might be achieved, and in particular, what role international law might play in the process, followed different paths. Some advocates, including Desai, suggested that international law, having earlier served the interests of the independent states, could now be bent to serve the interests of the colonized peoples. Others, including Pal at Tokyo, implied that international law was intrinsically imperialist, evolving to criminalize those who challenged the dominance of the powerful states.Footnote ⁸⁶ Others still, such as the Bengali political theorist Benoy Kumar Sarkar, argued that the law was not concerned with political aims as such, but only with actual power, which it then sought to legitimize. ‘A rebellion or revolution or war is justified only if it is successful’, he wrote in 1946, otherwise ‘the victors or the powers that be appoint their own judges in order to prove to their own satisfaction that the enemies were criminals and devils or that the rebels were miserable wretches.’Footnote ⁸⁷ This, he continued,

In short, the law follows the sword. Thus, the Red Fort trial could not have been conceived before the subjugation of the Indian National Army, and the Tokyo Tribunal could not have been convened before the bombing of Hiroshima. But herein lies the problem for those who demand allegiance to the status quo: is the law criminalizing assaults on the existing order perceived to be valid law?

This issue was a particular problem for the prosecuting powers in the aftermath of the war. No sooner had they defeated the Japanese than new challenges to their authority sprang up. Attempts to regain lost ground by convening trials to dispose of old enemies carried the risk of galvanizing support for new ones. This is precisely what happened at the Red Fort: a trial that had been conceived to raise the morale of the Indian Army instead unleashed a great wave of nationalist agitation, from mutinies in Bombay to riots in Calcutta. Not only that, but when the Allies tried to forge new legal weapons to assist their cause, they proved to be double-edged. At Tokyo, the judicial attempt to criminalize challenges to the status quo through the ‘crimes against peace’ charge prompted unwelcome dissents, highly publicized across Asia, and the charge was abandoned just after the sentences were handed down. At both trials, the prosecuting powers, propelled by hubris, prioritized security over all else, and, as Rebecca West predicted, they lost their cause because they fought too hard for it.