General Hideki Tojo, the Tokyo Tribunal and Dissenting Judgement of Justice Radha Binod Pal

It is worth introducing two names who form the backbone of this article. The first is General Hideki Tojo who was the Japanese wartime Prime Minister. He was earlier the Chief of the General Staff. When the tide of the war turned against Japan, he was asked to step down in 1944. After the defeat of Japan, he was arrested as a war criminal.

The second personage, I will introduce readers to is Justice Radha Binod Pal from Calcutta, India. He was one of the 11 justices from eleven countries who were appointed as judges to the Tokyo War Tribunal. Only three Asian judges were appointed to the International Tribunal and Justice Pal was one of them. He was the only one who submitted a judgment that insisted all defendants were not guilty. The Yasukuni Shrine and Kyoto Ryozen Gokoku Shrine have monuments specially dedicated to Judge Pal. The Japanese rever him for fighting their case and representing their point of view.

The United States established a Tribunal in 1946 to try all ‘war criminals’ and General Hideki Tojo the Japanese Prime Minister was one of them. The Tribunal established on the authority of General Douglas MacArthur, the supreme commander of Allied Forces in the South Pacific, commenced hearings in 1946.

Eleven judges from each of the allied countries including India were appointed to the tribunal. The trial was lengthy. The prosecution case took 192 days to present its case, while the defence took even longer at 225 days. The Chief Justice of the Court was an Australian judge named Sir William Webb. He was a judge of the Supreme Court of Queensland and the High Court of Australia. His appointment was approved by General MacArthur and it was expected he would moderate the other judges and toe the American line.

Tojo was arrested after the surrender of Japan. The Japanese who were looking for a facing way to surrender and on their last legs were Atom bombed into complete subjugation. Later it came out that though President Truman and the general staff were aware that Japan was beaten, yet they wished to carry out a test of the most lethal weapon ever developed on the people of Japan.

Tojo was tried for crimes against peace. These crimes included the planning, initiating, and waging an aggressive war. By this act, he was charged with furthering a hostile military act that violated the territorial boundaries or political independence of a sovereign nation. The tribunal gave its verdicts in November 1948. General H Tojo was found guilty and sentenced to be hanged to death. It was not a surprise at all. He faced the gallows in Tokyo on December 23, 1948. He was hanged within three weeks of the verdict as MacArthur and the allies wanted to act expeditiously.

The question is not whether the tribunal found him guilty, but for the fact that the US and its allies meted out primitive justice of revenge and retribution.

Out of the 11 judges, the Indian judge Radha Binod Pal gave a dissenting judgment. The judgment is important for posterity so that in future such courts, that treat the loser as a ’war criminal’ are consigned to the dustbin of history. If the logic of General MacArthur’s tribunal is extended to the Vietnam War, the US commanders could also face similar charges. Yet this did not happen. Even officers and men who were involved in massacres were given a presidential pardon.

What were the observations of Justice Radha Binod Pal? The Indian justice argued that the exclusion of Western colonialism and the use of the atom bomb by the United States from the list of crimes signified the "failure of the Tribunal to provide anything other than the opportunity for the victors to retaliate."

Justice Pal was of the view that lessons from history must be drawn. He equated western colonialism and the use of the Atomic bomb on defenseless people as an enormous war crime. Despite being the lone judge he stuck to his dissenting judgment.

Justice Pal was not alone in this opinion. Outside the Tribunal, many judges from England and India also held this view. He also made a very important point. He pointed out that for the tribunal to be truly representative judges from the vanquished nations should have been included, which in itself was an aberration.

Observations of Justice Pal

Justice Pal made significant observations that have not been given their due. His basic conclusion was that the entire prosecution case, that there was a conspiracy to commit an act of aggressive war, which would include the brutalization and subjugation of conquered nations was very weak.

His remarks about the Rape of Nanking, in particular, are revealing. Pal acknowledged the brutality of the incident. He did mention that the evidence was overwhelming that atrocities were perpetrated by the members of the Japanese armed forces against the civilian population and prisoners of war.

But he pointed out there was not an iota of evidence that these massacres were a part of official Japanese government policy. Thus to try Gen Tojo and others for this, was bad in law. Indeed, he said, there is "no evidence, testimonial or circumstantial, concomitant, prospectant, restrospectant, that would in any way lead to the inference that the government in any way permitted the commission of such offenses."

Pal was highly critical of the prosecution's use of the legal concept of conspiracy in the context of pre-war decisions by Japanese officials. Judge Pal's lone dissenting opinion, was dismissed by the West as a biased judgment by another Asian judge.

Pal wrote that the Tokyo Trials were an exercise in victor's justice and that the Allies were equally culpable in acts such as strategic bombings of civilian targets. He was particular that the Atomic bombing must be included as a war crime.

The British who were ruling India at that time felt embarrassed at the judgment of Pal and were contemplating action against him but in 1947 they had to leave India.

Justice Pals verdict is worth recounting here.

Justice Pal wrote,

“I would hold that each and every one 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.”

In his view, the atomic bombings of Hiroshima and Nagasaki were the worst crimes committed during the war, comparable with the Holocaust.

Last word

Much water has flown down the river since then. Justice Pal died in 1967. He is revered in Japan. Many western jurists agree with the substance of his arguments. It is reported that on the tribunal, judges from Netherlands and France concurred with Pal but did not put it in writing.

Justice Pal's document of dissent was promptly banned from publication, for many years. His judgment that the Allies were also equally guilty of war crimes, and that victors justice cannot be endorsed, was not palatable, at all.

That's the way the horse bucks.