The courtroom is traditionally envisaged as a place liberated from politics and the contamination that politics threatens. In this post, I want to challenge this orthodoxy by evaluating the position of Justice Radhabinod Pal (1886–1967) at the Tokyo Trials and situate it within the present domestic moment. To clarify, when I talk about the relationship between law and politics, I do not mean to only talk about trials of the political, but also the trial as a place of competing ideologies. Further, given its rambling nature, I do not mean to treat the dissent as a model of legal and political thinking but I do think it is worthy of attention by those interested in the question of justice in today’s global politics.
Pal’s dissent has been polarising. While some scholars have emphasised the markedly anticolonial nature of his dissent in the International Military Tribunal for the Far East (“IMTFE”), others have even alleged that it was too naively pro-Japanese. Interestingly, as constitutional law expert AG Noorani notes, while the newly independent Indian state distanced itself from the dissent by declaring that Pal had been chosen as an “eminent judge in his individual capacity,” and that he was not “India’s representative” on the tribunal, as soon as the Allied occupation of Japan ended, an excerpted version of Pal’s dissent was published as a Japanese-language monograph by Tanaka Masaki, the secretary of Matsui Iwane, one of the accused at the tribunal and it became an instant best-seller. In fact, as scholar Takeshi Nakajima documents, Japanese critics of the post War trials selectively choose passages from his dissent to invoke a revisionist account of history. Despite that, I contend that his dissent forces us to reconsider the dominant prevailing narrative about the progressive change in global politics, particularly as embodied in legal institutions.
Institutional Structure of the Tokyo Tribunal:
The IMTFE tried 28 former Japanese generals, admirals and politicians for acts committed between January 1928 and September 1945. The Tribunal was set up pursuant to the Potsdam Proclamation of 26 July 1945, which declared ‘[w]e do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals.’ It was made up of representatives of the nine Allied signatories of the Japanese Instrument of Surrender (Australia, Canada, China, France, New Zealand, the Netherlands, the United Kingdom, the United States and the USSR), alongside India and the Philippines.
The Tribunal delivered its Judgment in November 1948. The accused, with the exception of three who died during the trial or were declared unfit to stand trial, were all found guilty and sentenced to imprisonment or death. Alongside the Majority Judgment, there were two separate, but largely concurring in result, if not in reasoning, opinions and three dissents. Justice Henri Bernard (France), highlighting the absence of Japanese Emperor Hirohito, filed his dissenting opinion primarily on procedural grounds. Justice Röling (The Netherlands) filed his incisive dissent on the grounds that though aggressive war was a crime in international law, the reasoning behind such a categorization as spelled out in the judgment was problematic. Pal on the other hand, took issue with the fundamental premise of the tribunal itself.
The Dissent
Evaluating Justice Pal’s opinion, which reads like a Derridean judgement, brings to mind Anthea Roberts’s observation that, when it comes to law scholarship, “each of us brings our biography into play.”
Born into a poor, “lower-caste” household in rural Bengal (now Bangladesh), in colonial India, Justice Pal had experienced imperialism as British colonialism. He did not consider decolonisation as an entirely unambiguous achievement since Bengal closely witnessed the fratricidal violence of the partition that birthed the formally independent nation-state of India. It might be important to note that Bengal was also the home to Subhash Chandra Bose who openly aligned with the Axis powers.
This is perhaps why Pal’s most persisting insight connected international law to a project for stabilising power distributions within society. Pal challenged the court’s claim to represent lawfulness, community, progress and universalism. The court’s claim of lawfulness was undercut by the adoption of procedures that were pale imitations of the standard legal process and subjecting the accused to newly created norms, and its pretensions of progress were undermined by its resort to a punitive method for dealing with fallen enemies. The law enunciated by the Allies did not derive from a common sense of humanity because there was no community of states yet. In its absence, the law that was upheld at the IMTFE was the political and legal philosophy of a small number of Western States. Finally, the IMTFE’s apparent universalism was a charade. Chief Prosecutor Keenan had defined aggression as “a first or unprovoked attack” and had argued that the Japanese were guilty of not just launching unprovoked attacks, particularly at Pearl Harbor, but also of conspiring to carry out such acts over the course of nearly two decades. Justice Pal, however, pointed out that if aggression was to be understood in terms of the proverbial casting of the first stone, the IMTFE’s mandate, which covered the years 1928 to 1945, was too narrow and too convenient. This, to Pal, was apparent in the very charter of the post-war tribunals that quite deliberately excluded Allied conduct from its purview. Further, questions of law, he stated, “are not decided in an intellectual quarantine area in which legal doctrine and the local history of the dispute are retained while all else is forcibly excluded. We cannot afford to be ignorant of the world in which disputes arise.” The criminalisation of domination was a strange judicial move given that domination was something that no major power had desisted from, exemplified by the actions of the United Kingdom in Burma and India, the Netherlands in Indonesia, and the United States in the Philippines.
Concluding Remarks
The dissent can be read as a rejoinder to the moral enthusiasms embedded in international law institutions. Taken too far, it can support the justifications provided by the Iraqi State when it invaded Kuwait claiming that it was undoing arbitrarily drawn colonial borders or China’s actions in the South China Sea. But more importantly, I think it traces a dialectic between languages and premises of activities characterised as “legal” vis-à-vis those called “political”. Most obviously, a trial is an investigation of the accusation directed against the accused’s political project. Domestically, the judicial process at the Supreme Court is more openly becoming a species of political process with a similar ideological based, rather than evidence based, selection of the accused. In my reading, these institutions are not political because they lack a foundation in law or because they are a crude product of political forces but because the concept of the political remains perpetually in play. Rather than viewing law as an area that is apolitical perhaps our time is best served by re-examining how the relationship between law and politics is best understood and oriented.
