By Professor Satya Narayan Misra in Bhubaneswar, March 1, 2024: Close on the heels of Nuremberg trials, the Tokyo trials were conducted between 1946-1948, to prosecute Japan’s Military commanders for war crimes conducted during the second world war. At the trial stage, which was managed by the USA, Japanese judges were not included. The scope of the tribunal was limited to selected Japanese actions and did not include dropping of the Atom Bomb by USA in Hiroshima and Nagasaki.

Unlike the Nuremberg trials the Tokyo tribunal was not unanimous. Out of 11 judges, 3 gave dissenting opinion. While two of these expressed specific reservation about the conduct of the trial, the dissent of Pal was unique that it disagreed completely with the majority judgement.

Justice Radhabinod Pal, considered the trial to be an illegitimate case of victor’s justice for prosecuting individuals for action that were made crime after they were committed. His acquittal of all the accused of all charges demonstrated nuanced counterpoint to caricatured depiction of early Asian by the colonisers on the civilising mission. Today, when decolonisation agenda and independent dissenting opinions are perceived to be scarce, Justice Pal’s Life and work would provide telling lessons and a mirror to the posterity.

In essence, Pal held that 25 military Japanese commander including General Tojo, could not be held guilty for offences such as aggression since there were not illegal actions at that time. Though they were not legally culpable, their actions were condemned by Pal. Just because the allied powers had converted justice into a pursuit of vindictive retaliation, Pal would not convert his judicial opinion into a political retelling of why Japan may have acted the way it did. He was a judge and not a historian or a campaigner for world peace.

His outlook towards the Tokyo Trial, according to Ashish Nandi, influenced his expertise in Hindu Law, the divine ordering or earthly live. Law is neither an instrument for punishment or deterrence but rather the impulse to act from within, according to a divine sense of right. In his judgement, if any action can be rightly called war crime, it would have to be dropping of the atomic bomb by the Americans. It was an appeal to the Americans to look for divine impulse of right and wrong withing them rather than solely punishing the Japanese for their action.

For Pal, law was culturally contingent and international law has to accommodate cultural diversities to be legitimate. Fundamentally, in Hindu law, cultural diversity and not shameless, mutual respect and not hegemony that ruled the roost.

At a time, when India finds itself in the midst of an overt decolonisation campaign, that seeks to remove traces of colonisation rule from its citizens, we should rise to hear Pal’s counsel. We should not fall into the folly of responding to colonisers with colonising one’s own, meeting violence with violence. We must speak a different language from the west and imperialist Japan, not the same language differently.

Pal’s ideas did not endear to Jawaharlaal Nehru. He saw in Pal’s pro Japan Judgement replete with wild and sweeping statements and worked diplomatically to distance the Government of India from them. He was also possibly influenced by his difference with Subhash Chandra Bose who sided with Germany and Japan in his bid to free India from British imperial rule.

Pal also seemed to have a soft corner for Bose. But his judicial Independence is his abiding legacy for judicial profession in India of a judge who could speak his mind; act autonomously and clearly distinguished right from wrong and not seek reward from the government. The Japanese have a memorial in ShintoShirne complex in the heart of Tokyo in Pal’s honour.

Pal’s unique standing as a fly in the ointment of post WWII is recognised because of his efforts to institutionalise international justice. The crux of Pal’s argument was that for all the claims of a new progressive world order, global politics in the mid-20th Century was still defined by imperialism. The contemporary relevance of Pal’s critique can be seen in the sort of tribunals he participated in. The enterprise of institutional international justice never really took off during the decades of the cold war. However, in the immediate aftermath of collapse of USSR, theNuremberg legacy was dusted off and given new lease of life with the establishment of two tribunals, one for Yugoslavia and another for Rwanda.

There is a remarkable coalescence in the philosophy of Justice Pal and the philosophy of Edward Said, the celebrated academic critic. Edward Said is best known for his book Orientalism (1978), which critiques the cultural representation s that are bases of orientalism – how the western world perceives the Orient.Pal similarly critiques the western countries for trying to dominate, restructure and have authority over Japan. He combined a conservative legal positivism with radicalism that regards politics with which a court operates.

The use of nuclear weapon by the US tops the list of war crimes as well as exclusion of judges from the vanquished nations signified for Pal; “the failure of the tribunal to provide anything other than the Victors to retaliate. It was a sham employment of legal process for the satisfaction of a thirst for revenge.”

Justice Pal was deeply suspicious of universal international law in a deeply unequal society. No shared norm is possible in the absence of a truly homogeneous community. For Pal legal order flows from social order and is governed by a sense of cosmic reason. For Pal imperialism and colonialism are crimes far bigger than aggression. And was a firm proponent for dismantling colonialism so as to recognise self determination as a fundamental right. This is what Tilak as a political activist propounded.

After the war crimetrials he was elected to the UN International Law Commission, where he served from 1958-1966’ He was a major contributor to the Indian Income Tax Act of 1922. But he would always be lionised for being unafraid of USA, at a time it threatened the world as a nuclear power and bringing up their culpability in strategic bombing of civilian targets of Hiroshima & Nagasaki.

While concluding his dissent Pal quoted Jefferson Davis: ‘When time has softened and prejudice and reason shall have stripped the mask from misrepresentation, then Justice, holding evenly her scales, will require much of the past censure and praise to change place. ‘At a time when courage and independence of our judges is at the crossroads, Justice Pal holds an incandescent candle of dissent to emulate and be counted upon.