Radhabinod Pal - War Crimes Trial Dissent

War Crimes Trial Dissent

While finding that 'the evidence is still overwhelming that atrocities were perpetrated by the members of the Japanese armed forces against the civilian population of some of the territories occupied by them as also against the prisoners of war', he produced a judgment questioning the legitimacy of the tribunal and its rulings. He held the view that the legitimacy of the tribunal was suspect and questionable, because the spirit of retribution, and not impartial justice, was the underlying criterion for passing the judgment.

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 never intended to offer a juridical argument on whether a sentence of not guilty would have been a correct one. However, he argued that the United States had clearly provoked the war with Japan and expected Japan to act (Zinn, 411).

Pal believed that the Tokyo Trial was incapable of passing a just sentence. He considered the trial to be unjust and unreasonable, contributing nothing to lasting peace. According to his view, the trial was the judgment of the vanquished by the victors; such proceedings, even if clothed in the garb of law, resulted in nothing but the satisfaction of the desire for vengeance. In his lone dissent, he refers to the trial as a "sham employment of legal process for the satisfaction of a thirst for revenge." According to Norimitsu Onishi, while he fully acknowledged Japan’s war atrocities — including the Nanjing massacre — he said they were covered in the Class B and Class C trials.

Furthermore, he believed that the exclusion of Western colonialism and the use of the atom bomb by the United States from the list of crimes, and judges from the vanquished nations on the bench, signified the "failure of the Tribunal to provide anything other than the opportunity for the victors to retaliate." In this he was not alone among Indian jurists of the time, one prominent Calcutta barrister writing that the Tribunal was little more than "a sword in a wig". Fear of American nuclear power was an international phenomenon following the bombing of Hiroshima and Nagasaki.

Judge Pal's typewritten book-length opposition to the decision was formally prohibited from publication by the Occupation forces and was released in 1952 after the occupation ended and a treaty recognizing the legitimacy of the Tokyo Trials was signed by Japan. Pal's publication had also been prohibited in Great Britain, and it remained unpublished in the United States as well. However, a portion of his "original" judgment and copies of the original text in modern editions are available for sale online.

The American occupation of Japan ended in 1952, after Tokyo signed the San Francisco Peace Treaty and accepted the Tokyo trials' verdict. The end of the occupation also lifted a ban on the publication of Judge Pal’s 1,235-page dissent, which Japanese nationalists brandished and began using as the basis of their argument that the Tokyo trials were a sham, by selectively choosing passages from his dissent. Even though Pal believed that the Japanese committed atrocities during World War II, his dissenting opinion has been used by Japanese nationalists as evidence that the crimes had never happened.