‘Pal Hanji, Tokyo Saiban Hihan to Zettai Heiwa-shugi’
Hakusui-sha, 2007, 308 pages. Hardback ¥1,890. ISBN-13: 978-4560031667
Review by Fumiko Halloran
Professor Takeshi Nakajima of Hokkaido University says he wrote this book because he was concerned that a recent revival of interest in Judge Radhabinod Pal of India, who alone argued to acquit all Class A defendants in the International Military Tribunal for the Far East after World War II, might be going in the wrong direction. In the movement to re-examine modern Japanese history before, during, and after World War II, some Japanese critics of the tribunal, also known as the Tokyo War Crimes Tribunal or the Tokyo Trial, have tried to paint Judge Pal’s opinion as seeking to absolve Japan of all war responsibility or even supporting Japan’s Great East Asia Co-Prosperity Sphere. Prof. Nakajima criticizes these opinion leaders for what he says are often quotes from the judge’s opinions taken out of context. He asserts that they are interpreting the judge’s findings arbitrarily and without reading the whole text which ran to a quarter million words in English. Further, he contends that they lack full understanding of the position from which the judge was coming.
Nakajima’s ambitious goal in describing Judge Pal in totality and giving readers a better picture of his way of thinking is mostly successful, although not without shortcomings. The author targets the general reader, not the specialist, which may explain why his bibliography does not cover the entire spectrum of documentation in Japanese and English, the Tribunal’s two official languages. In spite of these shortcomings, this book has put Judge Pal’s dissenting opinions into perspective, since the vast majority of Japanese, particularly the young generation, have little knowledge not only of Judge Pal but of the trial itself. (The judge died in Calcutta in 1967 at the age of 80.)
Critics of the trial, often those who resent the blanket condemnation of Japanese wartime behaviour, have become more vocal and begun to take action ranging from erecting statues of Judge Pal at a temple in Kyoto and at the Yasukuni Shrine in Tokyo, to producing movies or even publishing popular comic books. Nakajima believes that such moves have distorted Judge Pal’s true intentions, which were to criticize the trial’s flaws in legalistic concepts, not to justify Japanese wartime behaviour.
Criticism of the Tokyo Trial is not new. Indeed, even among the eleven judges at the trial, not only Judge Pal but judges from the Provincial Government of the French Republic, the Netherlands, the Philippines and Australia rendered dissenting opinions. Among them, however, Judge Pal presented the most sweeping and formidable criticism of the legitimacy of the trial itself. Consequently, publication of his dissenting opinions was banned by the Occupation Authority until the occupation ended in 1952. Publication of that dissent was also banned in Great Britain. In the United States, Amazon lists “International Military Tribunal for Far East; Dissenting judgment by Radhabinod Pal” but says it is currently unavailable. The National Archives & Records Administration and private collections such as the Justice Erima Harvey Northcroft Tokyo War Crimes Trial Collection at the University of Canterbury, New Zealand, list the record of the dissenting opinions including that of Judge Pal.
Judge Pal asserted that all judges were appointed by the winning nations, therefore the trial was biased and partial, negating the hope that future wars could be prevented. That, he argued, should be the purpose of the trial, not revenge. Secondly, he objected to establishing new concepts of war crimes by which Japanese defendants were charged, namely “crimes against peace” and “crimes against humanity.” He believed, however, that conventional war crimes established by international law should be applied. The established concept of not charging war crimes retroactively was violated as “crimes against peace” and “crimes against humanity,” two new legal concepts, were introduced to charge the defendants for their actions in the past when such concepts had not existed.
At what point did the war begin was his next question. This was connected with the concept of a conspiracy to wage war, which was the core of the strategy by the prosecutors. Japan launched military action on multiple fronts from Manchuria to the Soviet Union to Mongolia to China in the 1930s before its attack on Pearl Harbor in 1941. Judge Pal asserted that Japan had been at war against one or more nations since July 7, 1937 at the time of the Marco Polo Bridge incident in China.
Since the definition of “invasion” was not clear in international law, Judge Pal asserted that the Soviet Union and the Netherlands had declared war against Japan and therefore should be defendants. Because the definition of invasion had not been established nor had war itself been considered a crime in the past, the two countries could not be charged. Judge Pal sharply criticized the Western colonial powers that had invaded and established European colonies in Asia. Therefore, theoretically, they should be charged as well as Japan of crimes against peace.
The judge reserved his strongest criticism for the atomic bombings of Hiroshima and Nagasaki by the United States. However since “crimes against humanity” had not then been established in international law, he said, the U.S. could not be tried.
A major reason he sought to acquit the Class A defendants on the charge of crimes against peace was, he asserted, that the prosecutors had failed to establish that there was a conspiracy to plan and wage war. To conspire, there had to be clear intent, chain of command, plans, and executions of the plans. During the period in which the twenty-eight Japanese leaders, both military and civilian, were charged with war crimes against peace, however, Judge Pal saw mistakes, misjudgements, and uncoordinated actions by separate groups or individuals, but no overall conspiracy.
By the same logic, Judge Pal examined the question of conspiracy by the Class A defendants on the Nanking Massacre (Nanking Gyakusatsu Jiken), atrocities committed by the Japanese military, and mistreatment of prisoners of war. While he strongly criticized Japanese behaviour in each case, he did not find a clear conspiracy within the government. He criticized, in the strongest terms, the lack of ethical conduct by Japanese who had committed such crimes but did not find evidence that the defendants had ordered and authorized the execution of the plans.
Prof. Nakajima details why Judge Pal thought that way. His identity as an Indian under British colonial rule was crucial. He was deeply influenced by Mahatma Gandhi, leader of the non-violent, independence movement against Britain. Indian leaders had sought haven in Japan, organized the Indian National Army, and hoped the Japanese invasion of India would end British colonial rule. Although the British offered autonomy in exchange for cooperation against Japan, the Indian National Congress refused to cooperate with British. When soldiers of the Indian National Army returned to India after the war, the British began to try them on charges of treason, which provoked widespread resistance. Judge Pal was then vice president of Calcutta University. His understanding of the war in Asia was not limited to Japanese behaviour but took a longer historical perspective. He believed that western colonial powers had done great injustice to Asian nations, creating consequences that culminated in Japanese military action against the Allies. This thinking did not prevent him from criticizing Japanese for war responsibility in specific cases. This fine line between adherence to international legal concepts and immoral or unethical behaviour of the Japanese military made for a danger of arbitrary interpretation, particularly by those who wanted to defend Japanese behaviour as self defence. At the same time, he raised serious issues on the conduct of war.
Judge Pal’s dissent opinion upset Prime Minister Jawaharlal Nehru, although the Indian press favoured his argument. The Indian government did not criticize Judge Pal in public and recommended that the seven defendants sentenced to death have their punishments reduced to life sentences, emphasizing the differences in its position from that of the judge and seeking support in India. Notwithstanding Judge Pal’s dissent, the Tokyo Trial sentenced seven Class A defendants to be executed, 16 to be given life sentences, and two to serve limited sentences. Three died in prison and one was judged to be mentally unfit to stand the trial. In addition, 5700 Japanese were tried as Class B defendants on war crimes and Class C defendants on crimes against humanity. The trials were held in Japan and overseas at 49 courts. Among those indicted, 984 were sentenced to death, 475 were sentenced to life, 2944 were sentenced to limited jail terms, 1018 were acquitted and 279 were never brought to trial. Chinese communists and Soviet military held separate trials. All these numbers were listed in Wikipedia which in turn relied on various publications. If some readers have authoritative numbers from primary sources, please advise.
A different version of this review first appeared on the National Bureau of Asian Research (NBR) Japan-U.S. Discussion Forum and is reproduced with permission.