A DISHONEST JUDGMENT

Print edition : November 16, 2007

Radha Binod Pal receiving the First Order of the Sacred Treasure, Japans highest civilian honour, in 1966. Copied from the private collection of Pals son, Proshanto Pal, whom the Japanese Prime Minister Shinzo Abe met during his recent visit. Post-war Japan showered Pal with honours. - ARUNANGSU ROY CHOWDHURY

Radha Binod Pal defended Japans expansionism and even its recourse to brutal war.

Radha Binod Pal

THE 25 accused in the Tokyo War Crimes Trial were charged with crimes against peace: the planning, preparation, initiation, or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties. Conventional war crimes, violations of the laws or customs of war. Crimes against humanity; murder, extermination, enslavement, deportation, and other inhumane acts.

It was an American show. At Nuremberg, each ally had the right to appoint a Chief Prosecutor. The four Chief Prosecutors acted as a committee only in specified instances but otherwise acted individually, although in collaboration with the others. In Tokyo, responsibility for investigation and prosecution rested solely on the U.S. Chief of Counsel. Associate Counsel designated by the participating nations had the duty of assisting him.

Judges were drawn from each of the 11 allied powers. So were prosecutors, Indias Govinda Menon included. Japanese defence counsel ably conducted a vigorous defence. The charge of conspiracy was sweeping from 1928 to 1945. Japan had 15 Cabinets during this period. Of the 11 members of the Tribunal, eight fully supported the judgment and the verdicts. Two of the eight, the President and Justice Jaranilla, from the Philippines, filed short concurring opinions elucidating their views on specific problems. Justice Roling, the member from the Netherlands, filed a separate opinion, concurring in part and dissenting in part. He disagreed with certain inferences drawn by the majority from some of the evidence and disapproved of the verdicts and sentences against eight of the defendants, regarding some as excessive and some as inadequate. Justice Bernard, from France, dissented for special reasons. Only the majority judgment was read in open court and made part of the transcript. The others were filed as part of the official record.

The President, Sir William Webb of Australia, said: It may well be that a naked conspiracy to have recourse to war or to commit a conventional war crime or crime against humanity should be a crime, but this Tribunal is not to determine what ought to be but what is the law. Where a crime is created by International Law, this Tribunal may apply a rule of universal application but it would be nothing short of judicial legislation for this Tribunal to declare that there is a crime of naked conspiracy for the safety of the international order.

Judge Bernard of France noted grave defects in procedure. He would acquit all the accused since they were denied a fair trial. It was a rigged trial, like the one at Nuremberg where the four Prosecutors agreed to bar evidence of British imperialism or of the Nazi-Soviet Pact. Cross-examination had to be confined to what the witness said in his evidence in chief. Thus, the credit and credibility of tutored witnesses could not be challenged. The Tribunal gave inconsistent rulings by a majority vote.

Pals judgment raised some valid points concerning procedure; but, fundamentally he was opposed to the trial itself. He held: (1) That no category of war became criminal or illegal in international life; (2) That the individuals comprising the government and functioning as agents of that government incur no criminal responsibility in international law for the acts alleged; (3) That the international community has not as yet reached a stage which would make it expedient to include judicial process for condemning and punishing either states or individuals. I believe no one will seriously contend that domination of one nation by another became a crime in international life it must be held that the object itself was not yet illegal or criminal in international life. In any other view, the entire international community would be a community of criminal races. At least many of the powerful nations are living this sort of life and if these acts are criminal then the entire international community is living that criminal life, some actually committing the crime and others becoming accessories after the fact in these crimes.

The so-called Western interests in the Eastern Hemisphere were mostly founded on the past success of these western people in transmuting military violence into commercial profit. The inequity, of course, was of their fathers who had had recourse to the sword for this purpose. Pal quoted Walter Lippmanns Opinions, the New York Herald Tribune and relied throughout on the Royal Institute of International Affairs (RIIA) Annual Survey of International Affairs as a reliable account of the events.

He stretched everything in Japans favour. Read these gems: The civil war in China and the state of anarchy prevailing there consequent thereupon, if established, might go a great way, at least to explain, if not also to justify, the Japanese action in North China as alleged by the prosecution. I believe that in this connection it would be a pertinent enquiry to see if the Japanese forces in China restored peace and tranquillity there as alleged by defence the defence in answer to this phase of the case offered to prove the character of communism in China and its rapid development there. The Tribunal by its majority decision dated 29 April 1947 ruled that such evidence was irrelevant.

It is really unfortunate that the evidence offered by the defence on this point had been rejected. I have already given my opinion about this ruling. In the absence of that evidence it would not be fair to come to any decision as to the nature of the Chinese Communism and its connection with the communism in Soviet Russia, or as to its part in the spread of the hostility The terror of Chinese Communism so far as the foreigners in China are concerned may also be seen from the Survey by the Royal Institute of International Affairs. The Survey says: . There are whole passages without attribution; presumably they are also from the Survey.

We might have to take into our consideration THE WORLD TERROR of these factors, the growth of Communism in China, its connection with the Soviet Russia and its probable effect on Japanese interest in China. We might have to consider whether the circumstances would indicate the bona fides of the measures taken by Japan to forestall the danger, if any, involved in such developments. The so-called threat of Communism being a new development in international life and in lives of the states, the question would require a very serious and careful consideration.

Even assuming that the right of self-protection would not extend to such interests as Japan had in China and that Japans action in China was not justifiable even if such interests were endangered by the development of communism there, the growth of communism might, at any rate, explain the action taken and thus go against the theory that such actions were only several steps in an over-all conspiracy.

In my opinion, the exclusion of evidence on this point also has made it unjustifiable on our part to discard the case of the defence that the spread of hostility in China was due to communist attitude and disturbances. Apart from the question of justification, such developments sufficiently explain the occurrences and to that extent lead us away from the inference of any over-all conspiracy. This betrays his political outlook and his utterly unjudicial and partisan approach.

Read this defence of Japans expansionism and even its recourse to a brutal war: The never-ceasing national problem of Japan rendered it inevitable, at least to the then statesmen of Japan, that the Japanese Government and people must set themselves to provide for Japans rankly growing population by acquiring for Japan an increasing share in an increasing aggregate turnover of international trade. But they could not altogether ignore the fact that their peaceful pursuit in this respect had been frustrated, may be, by inhuman forces beyond human control; but, rightly or wrongly, they ascribed this frustration also to human forces beyond their control. The four English-speaking countries with sea-boards on the Pacific did not appear to them to be sympathetic with their peaceful aspirations. When Japan came on the field there had already been the Anglo-American economic world order leaving no space for expansion to any new power. Ergo, Japans expansionism was justified.

So was its racism. I cannot condemn those of the Japanese leaders who might have thought of protecting their face by inculcating their racial superiority in the youthful mind. Revulsion at racialism in the West should not lead to this conclusion. In 1941, It was a critical moment in the life of Japan when, to the knowledge of every statesman including TOJO, Japans very existence as a nation was gravely imperilled. Every statesman and diplomat of any consequence was nervously thinking of finding out some honourable escape for the nation from utter destruction. At a moment like this, statesmen do not grasp power. They are called upon to shoulder the grave responsibility and undertake the solemn duty of facing the imminent danger with courage. Pal never concealed his admiration for the expansionist Japan of those times.

The utmost that can be said on the evidence is that Japan shared the same fear and with characteristic clear-sightedness envisaged the character of future warfare and took what steps she could in order to be prepared for it. They realised that another war, when it would come, would engulf everything and everybody, and they, like many other countries, were keeping themselves ready for such a contingency Japan was really driven to take action against these Powers by the circumstances then created by them. She no doubt made preparations keeping in view Great Britain and America as hypothetical enemies and was trying to keep herself in complete preparedness for an eventuality. I cannot accept the view that this preparedness was for any aggressive hostility. This is not naivety. It is intellectual dishonesty.

Pal went so far as to hold that Japans Anti-Comintern Pact with Germany as well as the Secret Attached Agreement which related to the Soviet Union were defensive. As ever, the RIIAs Survey of International Affairs is quoted to conclude that it was only a defensive alliance against the USSR. Now, read on: The militarists of Japan were not alone in their fear of Communism and in associating such fear with the USSR. We know that even the United States could not free itself of that fear, so much so that it was afraid of according its recognition to the USSR until November 16, 1933. It should also be remembered in this connection that, by the year 1932, communism had become an organised and effective political power in China, exercising exclusive administrative authority over large stretches of territory, and, that, the Chinese Communists were in some degree affiliated to the Communist Party in Russia.

As I have already pointed out, there were circumstances which led the world to believe that Communism in China was really bone of the bone and flesh of its Russian homonym, and, that, at the turn of the years 1931 and 1932, the world was faced with the possibility that the renewal of relations between Moscow and Nanking, as a result of the resumption of diplomatic relations on the 12th December 1932 between the Russian communist government at Moscow and the Kuomintang Central Government of the Chinese Republic at Nanking, might be followed by an elimination of the discomfited Nanking Government and the discredited Kuomintang in order to make way for an alliance between the Russian Soviet Union and the Chinese Soviet Union of the same colour The possibility that the Chinese and Russian communists might join hands was thus to be reckoned with. If this was the world war, I do not see why should we condemn the Japanese statesmen if they too shared this fear and took what measures they considered likely to be the efficient check. Why was a defensive pact kept secret?

Pacts of aggression are always deceptively worded so as to appear defensive. The Sevres Protocol of October 24, 1956, among the British, French and Israelis on intervention in Suez against Egypt was also worded to seem like a defensive arrangement. Only the naive or the intellectually dishonest can cite the letter ignoring the context, the spirit and the obvious objective.

Yet, to this very Pal the united front between the KMT and Chinas Communist Party was offensive and justified Japans aggression. It is now known that at the end of 1936 Chiang Kai-Shek and the Kuomintang united with the Chinese Communists against Japan. It was this unification, which in July 1937 precipitated the present Japanese war against China. Since this unification of the Chinese, America helped them against Japan in various ways. Aggression, I believe, is not always easily discernible. It may necessitate an enquiry into a complex situation not unmixed with law. Japan might take this participation by the United States as an act of belligerency. It is disgraceful to put such cheap polemics in a judicial pronouncement.

Of Pearl Harbour, Pal writes: The evidence convinces me that Japan tried her utmost to avoid any clash with America, but was driven by the circumstances that gradually developed to the fatal steps taken by her. The evidence does not entitle us to characterise the Japanese attack as a sudden, unexpected, treacherous act committed while relations between the two countries were peaceful. We have seen to what extent the United States was at peace with Japan, and how she was actually engaged in a peace conference with Japans envoys. There was no treachery on the part of Japan in this respect. It does not matter whether there was any manoeuvring anywhere to make Japan commit the first overt act.

As for atrocities, instances of the alleged atrocious incidents were very rare during the first five periods There might have been some stray cases but such incidents are not at all unusual. There is no army or navy in the world which has not committed crimes of this nature. Those who committed such acts have, I believe, already been punished. I do not think that from such stray cases we can draw any conclusions as to the policy of the government; and it is this policy with which we are not concerned The real atrocities on a larger scale were committed during the latter part of 1944 at a time when the war had taken its turn against Japan and the Japanese Army got hopelessly disorganised.

It is difficult to make even the commanders of the army responsible for what was happening at that time. Such acts would not, in my opinion, even indicate any negligence or wilful omission on the part of the commanders in the field.

He wrote also: In the Pacific War under our consideration, if there was anything approaching what is indicated in the above letter of the German Emperor (advocating slaughter), it is the decision coming from the allied powers to use the ATOM BOMB. Future generations will judge this dire decision. History will say whether any outburst of popular sentiment against usage of such a new weapon is irrational and only sentimental and whether it has become legitimate by such indiscriminate slaughter to win the victory by breaking the will of the whole nation to continue to fight. We need not stop here to consider whether or not the atom bomb comes to force a more fundamental searching of the nature of warfare and of the legitimate means for the pursuit of military objectives. It would be sufficient for my present purpose to say that if any discriminate destruction of civilian life and property is still illegitimate in warfare, then, in the Pacific war, this decision to use the atom bomb is the only near approach to the directives of the German Emperor during the first world war and of the Nazi leaders during the Second World war. Nothing like this could be traced to the credit of the present accused. Hiroshima and Nagasaki were undoubtedly crimes against humanity perpetrated by the U.S. in cold blood. But do they obliterate crimes committed by Japans leaders? No judge would hold that. Only a Radha Binod Pal would, in sheer abuse of judicial office.

The U.S. crime did not bear on the guilt of the accused at the time. His judgment was more than disingenuous. It was dishonest.

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 The case of the accused before us cannot in any way be likened to the case either of Napoleon or of Hitler. The constitution of Japan was fully working even during war the public opinion truly and vigorously functioned. The war that took place in the Pacific was certainly war with Japan. THESE PERSONS DID NOT USURP ANY POWER.

The concluding portion is highly emotional. The name of Justice should not be allowed to be invoked only for the prolongation of the pursuit of vindictive retaliation. The world is really in need of generous magnanimity and understanding charity Let not the implication of atomic explosion fail to spur men of judgment. to seek a method whereby the peoples of the earth can live in peace and justice. But the course of action signified in the trial and punishment of the leaders of a defeated nation does not indicate much appreciation of this implication.

Nehrus strong censure of Pal was perfectly justified. Today China and Japan are two great Asian countries committed to peace and responsible policies. They should join hands now to write an objective account of a tragic past and put it behind them. The historical truth will alone help them in this reconciliation.

As for Radha Binod Pal, he richly deserves a place at the Yasukuni shrine. He earned it and rightly belongs to it.

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