Asian Journal of International Law (2021), 1–9 doi:10.1017/S2044251321000187 NOTES AND COMMENTS Contextualising Radhabinod Pal’s Dissenting Opinion in Contemporary International Criminal Law Sumedha CHOUDHURY* Refugee Studies Centre, University of Oxford, Oxford, United Kingdom Corresponding author: Sumedha Choudhury, email: [email protected] (Received 12 September 2020; revised 28 February 2021; accepted 23 April 2021) Abstract Radhabinod Pal, a judge at the Tokyo Tribunal, wrote a dissenting opinion absolving all the accused Japanese of the alleged crimes. In so doing, he advanced several conceptual and theoretical argu- ments to support his opinion. This paper focuses on the opinion of Pal concerning non-retroactivity of law, global democracy, imperialism, and victor’s justice. The paper analyses his opinion in the light of contemporary developments and argues that his criticisms of the international criminal law regime and global justice are still relevant. Keywords: International Criminal Law; History and Theory of International Law After the end of World War II, China, the UK, and the US jointly issued the “Proclamation Defining Terms for Japanese Surrender” (commonly called “Postdam Declaration”, 26 July 1945). It was subsequently adhered to by the then Soviet Union. The Postdam Declaration compelled the unconditional surrender of all Japanese armed forces and called for “stern justice” to be meted out to the war criminals. On 2 September 1945, the signatories for Japan, by command of and on behalf of the Emperor and the Japanese government, accepted the terms outlined in the Postdam Declaration. Following this Declaration, the Charter of the International Military Tribunal for the Far East [IMTFE] was convened by an executive decree of General Douglas MacArthur on 19 January 1946.1 The Charter prescribed the constitution, the jurisdiction, and functions of the IMTFE, commonly referred to as the “Tokyo Tribunal”.2 The Charter, relying on its predecessor, the Nuremberg Charter, laid down three offences over which the Tribunal had jurisdiction, namely, crimes against peace, conventional war crimes, and crimes against humanity.3 * MSc (Refugee Studies Centre, University of Oxford); LLM (South Asian University). This paper is part of a more extensive work that corresponds to the LLM dissertation submitted at South Asian University. The author would like to thank her LLM supervisor Dr Srinivas Burra. The author also thanks Haris Jamil and the anonymous reviewers for their insightful comments. 1 MacArthur was the Supreme Commander for the Allied powers in Japan acting under the orders of the US Joint Chiefs of Staff. Richard H. MINEAR, Victors’ Justice: The Tokyo War Crimes Trial (Princeton, NJ: Princeton University Press, 1971) at 20. 2 Charter of the International Military Tribunal for the Far East, 19 January 1946, Treaties and Other International Acts Series 1589 (signed in Tokyo on 19 January 1946) [IMTFE/Tokyo Charter]. 3 Charter of the International Military Tribunal—Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 82 U.N.T.S. 284 [IMT/Nuremberg Charter]. © The Author(s), 2021. Published by Cambridge University Press Downloaded from https://www.cambridge.org/core. IP address: 170.106.33.19, on 25 Sep 2021 at 08:04:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S2044251321000187 2 Sumedha Choudhury Through an amendment to the Charter on 26 April 1946, a significant change was introduced to Article 2, adding India and the Philippines to extend the membership of the Tribunal to eleven members instead of nine.4 It was on the British assertion that India, being a British colony and witness to the Japanese invasion, be included on the bench to demonstrate Asian representation and support at the Tokyo Tribunal.5 Following the amendment, Radhabinod Pal from India was appointed as a judge at Tokyo. As a late addition, when Pal was informed that the nine original judges had decided to arrive at a unanimous decision, he made it clear that, not being a party to the original arrangement, he did not consider himself bound by it.6 In his opinion, running to 1,235 pages, Pal dissented with the majority judgment and stated that: “I would hold that each and everyone 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.”7 Besides wide criticisms the world over, Pal’s Dissent was not well received by many in India.8 For example, Jawaharlal Nehru, the first prime minister of independent India, was critical of Pal’s Dissent. On 6 December 1948, Nehru wrote in a circular letter to the pro- vincial Chief Ministers: In Japan, the sentence of death passed on Japanese war leaders has met with a great deal of adverse criticism in India. The Indian Judge on that Commission, Justice Pal, wrote a strong dissentient judgment. That judgment gave expression to many opi- nions and theories with which the Government of India could not associate itself.9 Contrarily, some scholars have highlighted that after independence the Indian govern- ment was never seen as dismissing Pal’s dissenting judgment, even though it may have caused some diplomatic embarrassment.10 In fact, it is noted that “ever since then his Tokyo judgment has been ritually commended by every Indian dignitary in the context of relations between India and Japan”.11 Pal’s Dissent was arguably one of the first instances where a judge from India, a colo- nized country, had an international platform on which to register his views on inter- national law. Pal did not just critique the procedural and substantive issues at the Tokyo Tribunal, but also questioned the idea of international criminal justice and the nature of the international legal order that came to be established after the two world wars.12 The implication of Pal’s critique was not limited just to Japan, but also to newly independent India where there was a growing attempt to decide the extent to which post- colonial India should engage with the rules of international law. As Singh argues: “only 4 IMTFE, supra note 2. 5 Partha CHATTERJEE, I Am the People: Reflections on Popular Sovereignty Today (New York: Columbia University Press, 2020) at 7. 6 Latha VARADARAJAN, “The Trials of Imperialism: Radhabinod Pal’s Dissent at the Tokyo Tribunal” (2015) 21 European Journal of International Relations 793 at 798. 7 International Military Tribunal for the Far East (United States et al. v. Araki et al.), Decision of 12 November 1948, Dissentient Judgment of Justice Radhabinod Pal, [1948] at 697 [Pal’s Dissent]. 8 Prabhakar SINGH, “Reading R.P. Anand in the Postcolony: Between Resistance and Appropriation” in Jochen von BERNSTORFF and Philipp DANN, eds., The Battle for International Law: South-North Perspectives on the Decolonization Era (Oxford: Oxford University Press, 2019), 297 at 308. 9 A.G. NOORANI, “The Yasukani ‘Hero’” Frontline (2 November 2007), online: Frontline <https://frontline. thehindu.com/static/html/fl2421/stories/20071102503906000.htm>. 10 Chatterjee, supra note 5 at 10–11. 11 Ibid. 12 Varadarajan, supra note 6 at 794. See also Adil Hasan KHAN, “Inheriting a Tragic Ethos: Learning from Radhabinod Pal” (2016) 110 AJIL Unbound 25. Downloaded from https://www.cambridge.org/core. IP address: 170.106.33.19, on 25 Sep 2021 at 08:04:51, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S2044251321000187 Asian Journal of International Law 3 Judge Pal, if at all, was able to translate the essence of political postcolonialism into inter- national law.”13 Even in present times, Pal’s Dissent has a lot to offer.14 A cursory analysis of the pre- sent international criminal legal order shows that his criticisms of the international crim- inal law [ICL] regime and global justice still hold. This paper focuses on Pal’s Dissent at the Tokyo Tribunal and looks into its contemporary relevance. I. Justice Pal’s Dissent and individual criminal responsibility The principal discourse on individual criminal responsibility [ICR] began after the end of World War II. The early development of international criminal law is seen as coterminous with the establishment of the Nuremberg and the Tokyo Tribunals. Its relative success led to the acceptance of the ICL regime in state practice, and its importance is often acknowl- edged by global civil society and in the mainstream international law literature. For the last few decades, it has become an intrinsic part of the international legal system and is seen as a panacea to all the major problems faced in realizing international justice. While the importance of the development of ICL and the necessity of ascribing inter- national criminal responsibility to individuals cannot be doubted, its drawbacks are often ignored or deliberately overlooked. As with ICL’s beginning, its contemporary relevance is not free from non-legal considerations. An instance that lost its significance in the Western tendency of extirpating everything which was deleterious to the reputation of the ICL regime was the dissenting opinion of Radhabinod Pal. In mainstream Western international law scholarship, Pal’s Dissent merely finds its place without much reflection. As Richard Falk notes: “Pal’s dissent is an exemplary instance of anti-colonial jurispru- dence, and not only does the Western academic literature ignore it, but it is not published in a text that is readily available in most libraries.”15 Though in recent times Pal’s Dissent has attracted attention, this is mostly from the Third-World scholars. The analysis of ICR through the lens of Pal was significant as it challenged the then-existing international world order where the victor states were naturally perceived to be in a position to create laws and to punish the defeated at their will.