Very few Indians today remember Radhabinod Pal. To the paltry numbers, some thousands may have been added recently by the 2016 miniseries Tokyo Trial, available on Netflix, in which Irrfan Khan plays Pal.

In 2007, on a visit to India, Japanese Prime Minister Shinzō Abe paid tribute to Pal, who died in 1967, in an address to Parliament. He then went to Kolkata to meet Pal’s son. In 1966, Pal was awarded the Order of the Sacred Treasure First Class by the emperor of Japan, one the country’s highest honours (other awardees include the economist Milton Friedman, Sony co-founder Akio Morita and Toyota Motor Corp. chairman Soichiro Toyoda). There is a monument dedicated to Pal at Tokyo’s Yasukuni shrine, which commemorates Japanese war heroes.

Pal was a judge on the International Military Tribunal for the Far East (IMTFE), which was set up by the Allied powers, post World War II, to try Japanese leaders for “war crimes". The other 10 judges were from the US, Canada, Britain, France, the Netherlands, Australia, New Zealand, the Soviet Union, China and the Philippines.

The court found all the 25 defendants guilty. Seven were sentenced to death, 16 to life imprisonment, and two were sentenced to 20 years and seven years in prison, respectively.

A ‘Tokyo Trial’ poster—the series is available on Netflix.
A ‘Tokyo Trial’ poster—the series is available on Netflix.

Pal was the sole dissenting judge who exonerated all the arrested suspects of all charges.

The charges were categorized into classes A, B and C. The class A charge involved crimes against peace (waging aggressive war). Classes B and C charges covered conventional war crimes and crimes against humanity, respectively. There could hardly have been any doubt in anyone’s mind what the judgement of the tribunal would be. The war was over, the Allies had won, and history would be written by the victors. In fact, Pal was included as a judge after the trial proceedings had started, merely to beef up the Asian presence on the bench. Initially, he was even accommodated at a hotel in Tokyo that was inferior to the one in which the other judges were staying.

But Pal refused to be the token Indian on the bench.

He surprised—rather, shocked, embarrassed and angered—his colleagues. Pal pointed out that the tribunal could not apply the class A and class C charges—crimes against peace and crimes against humanity—with retrospective effect. There were no such crimes listed under international law when Japan had gone to war, so Japan could hardly have broken any law. By trying the defendants under these charges, the tribunal was going against every accepted legal procedure. The indictments themselves were invalid.

The very charter (known as the Tokyo Charter) that set up the tribunal, transgressed the fundamental rules of international law, said Pal. The Tokyo Charter, he argued, ought to decide merely what matters would come up for trial before the tribunal. It should be up to the tribunal to determine whether these acts constituted any crime under appropriate laws.

Pal’s logic was simple and irrefutable, but, of course, the charter was not changed, and the tribunal went about its business exactly as it was expected to.

In his 1,235-page dissenting judgement, Pal wrote that the tribunal was a “sham employment of legal process for the satisfaction of a thirst for revenge". He pointed to the “failure of the tribunal to provide anything other than the opportunity for the victors to retaliate". He concluded: “I would hold that every one of the accused must be found not guilty of every one of the charges in the indictment and should be acquitted on all those charges."

Pal’s arguments were strong enough to influence the French and Dutch judges; they submitted separate dissenting notes, though agreeing with the majority judgement of finding the defendants guilty. When it came to conventional war crimes (which he agreed was an indictment permissible under law), Pal recognized the fact that the Japanese army had behaved abominably in the territories that it conquered—especially in China; he called the atrocities in Nanking (now Nanjing, and then the capital of the republic of China) “devilish" and “fiendish".

But he noted that there was not enough evidence that the defendants in the Tokyo trial—senior ministers, bureaucrats and high-ranking officers of the armed forces—had ordered these carnages. In fact, the men who had been directly involved in the brutalities and had been captured alive, had already been tried and sentenced, most of them to death. Also, asked Pal, had the defendants committed any greater crimes against humanity than the US had done in Hiroshima and Nagasaki?

“Questions of law are not decided in an intellectual quarantine area in which legal doctrine and the local history of the dispute alone are retained and all else is forcibly excluded," he wrote. “We cannot afford to be ignorant of the world in which disputes arise."

In his judgement, Pal questioned the very moral right of the Allies to condemn Japanese imperialism when large parts of humanity had been colonies of British and other Western powers for two centuries or more. Japan was a country with no natural resources of its own, he pointed out, and in annexing territories in East Asia and establishing protectorates, was merely following the Western example.

As far as war crimes go, it is interesting to note here that the deliberate bombing of urban civilian populations as the principal way of fighting a war by a major industrial power may have started on 14 February 1942, with a British Air Staff directive to Royal Air Force Bomber Command, which read: “The primary object of your operations should now be focused on the morale of the enemy’s civil population..."

The British and American air forces then developed precise scientific methods of firebombing civilian populations to cause maximum deaths with maximum efficiency.

On the night of 9-10 March 1945, in the single most destructive air strike in human history, American bombers killed an estimated 100,000 civilians in Tokyo—20,000-30,000 more than were killed instantly in Hiroshima or Nagasaki.

In recent years, Japanese revisionist historians have used sections of Pal’s judgement to bolster their argument that the Japanese were not aggressors or invaders in World War II. Pal would not have been pleased. He had never supported what Japan had done. What he had said was that Japan could not and should not be singled out for its imperialist lust. In fact, in a speech he delivered at Hiroshima in 1952 (he had been invited by the Japanese government), he said: “If Japan wishes to possess military power again, that would be a defilement against the souls of the victims we have here in Hiroshima."

In his judgement, he wrote: “I doubt not that the need of the world is the formation of an international community under the reign of law, or correctly, the formation of a world community under the reign of law, in which nationality or race should find no place."

Reading about Pal today, what is astonishing is his courage and integrity, as he stood by his principles and refused to give in to the tremendous pressures he must have faced from his fellow judges on the tribunal.

The tribunal proceedings were also being conducted when India was going through extraordinary changes. The tribunal was convened on 29 April 1946 and the final sentencing was done between 4-14 December 1948. Pal had spent 60 years of his life in a shackled nation when he arrived in Tokyo, at a time when, at long last, independence seemed not too distant a reality. The trial of Shah Nawaz Khan, Gurbaksh Singh Dhillon and Prem Kumar Sahgal, officers of the Azad Hind Fauj, had been held in Delhi from November-December 1945. All three had been found guilty of treason and war crimes, and sentenced to deportation for life. But, given the public mood, all three had been released.

Pal would be in Tokyo when India gained freedom and was partitioned (his village would go to East Pakistan). All these events back home would have been on Pal’s mind as he worked in a far-off alien land, first as the sole representative of the colonized world, and then of a newly free people. The job at the Tokyo tribunal would have demanded much more from him than from any of the other judges. Even though his countrymen would not have been aware of it, in his mind, he would have been carrying the weight of the ideals of an entire nation, liberated from its colonized past and aspiring for a proud future.

Pal’s Tokyo judgement is proof that nothing could sway him from what he believed to be true, right and just. That he had fulfilled his duty as a judge and as an Indian. It has been 70 years since the Tokyo trial ended. It may be a good time to remember this brave and patriotic man.

Sandipan Deb is editorial director, Swarajyamag.com.

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