You raise the interesting question of why suddenly at the end of a war after people were being shot and bombed and torpedoed and mined out of hand for years in their hundreds of thousands by both sides, the victors suddenly became very formal and legal.
One thing that rarely happened even up to that point was that generals got executed by either side after being captured. Why?
Why did the Yanks have deep moral debates about whether it was right or wrong to blow Yamamoto’s plane out of the sky when they knew where he was going? Some felt it was an assassination and wrong.
When did the same American commanders ever have a similar debate about attacking another Japanese person or aircraft, or committing their own men to battle and death?
What was it about targeting and killing a specific person like any of the many other Japanese they killed that worried the Yanks about killing Yamamoto, and made them and the other Allies want to run the IMTFE rather than just slaughter a few mass murderers the same way they’d condoned the slaughter of millions?
Why did targeting a single important person cause them such concern when they unleashed bombardments on ships and shores that they knew, or hoped, would kill thousands of people?
Was there a form of class privilege practised and acknowledged between generals?
Were the IMTFE trials instances of justice or merely events which needed to occur to confirm in the Allies’ minds that what they did was right?
Was Curtis le May right or wrong when he said that if America lost the war he’d have been tried as a war criminal for the Tokyo firebombings?
Doesn’t his comment suggest that he knew his actions would fail the tests applied to Axis people charged with war crimes?
The unpopular reasoning of the Indian judge at the IMTFE points to more areas for debate about moral and legal hypocrisy, but it also points to areas for debate about the influences which led the Indian judge to his position, as it does about the other judges and the positions they took.
A Brief history of the IMTFE
Starting on 3rd May 1946 and ending in November 1948, twenty-eight Japanese leaders were tried before a panel of eleven judges. The judges came from Australia, Canada, France, Great Britain, India, Netherlands, New Zealand, Philippines, USSR, and USA. Philippines and India gained independence during the time of the trial. The mandate of the tribunal covered acts committed between 1st January 1928[5] and 2nd August 1945.
Article 10 of the Potsdam Declaration stated that ‘stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners’. The criteria to define war criminals did not allow the prosecution of allied forces. The Charter of the IMTFE was a slightly modified version of the charter of the Nuremberg Tribunal drawn up at the London Conference[6]. The three categories of offences tried were:
overall conspiracy to carry out wars of aggression in East Asia and Indian and Pacific Ocean areas;
ordering, authorising or permitting conventional war crimes; and
not taking adequate measures to prevent the occurrence of conventional war crime.
After the examination of over four hundred witnesses and four thousand documents, eleven were sentenced to death by hanging; sixteen to life in prison; one to twenty years’ imprisonment; and one to seven years imprisonment. There were no acquittals, but two died during the trial and one was found to be mentally incompetent.
There were five judges who gave separate opinions[7]. Sir William Webb from Australia (and President of the IMFTE) stated that the fact that ‘leader in the crime’ (the Emperor) had not been indicted must be considered while passing sentences. The French judge Henri Bernard complained of procedural shortcomings and stated that:
‘a verdict reached by a tribunal after a defective procedure cannot be a valid one’.
Judge Radhabinod Pal from India pointed out the necessity of considering acts of Western powers before judging Japan and argued that all defendants were innocent of all charges. Judge B.V.A. Roling of the Netherlands argued that no conspiracy existed and that five of the defendants were innocent. Judge Delfin Jaranilla of the Philippines argued that many sentences were:
‘too lenient, not exemplary and deterrent, and not commensurate with the gravity of the offence or offences committed’ (Hosoya, 1986, p.11).
It is interesting to note that the two most extreme views, of acquittal and more grave sentences came from judges of newly independent countries. It may be pointed out the judge from Philippines had suffered personal injury and loss at the hands of the Japanese (Nandy, 1995, p.64).
- Radhabinod Pal’s Dissenting Judgement
Radhabinod Pal was the only judge who raised the issue of Hiroshima and Nagasaki to suggest that the trial was farcical. His judgement was not read out at Tokyo and was even banned for a while. Although scholars outside India have largely ignored Radhabinod Pal’s judgement, the few comments that it has received are widely conflicting. Nationalist historians in Japan have hailed it as a vindication of their utter victimisation[8]. Hideki Tojo, who was Prime Minister during the war and sentenced to hanging, even left a haiku in Pal’s honour. (Nandy, 1995, p.56) Some others have described it as a misconceived attempt to translate Gandhian notions of ahimsa (non-violence) rather inappropriately into international law. Chomsky has hailed it as a courageous indictment of American criminality[9]. More recent historical accounts have again nearly ignored him[10]. Pal is often described as being the only judge on the tribunal who was formally trained in international law (Minear, 1986 and Saburo, 1986). Within India, Pal has been almost totally forgotten by legal scholars and historians. One of the only exceptions, which earned the qualification in the previous sentence, is an essay by psychoanalyst and social commentator, Ashis Nandy (Nandy, 1995).
Radhabinod Pal’s possible motivations will be discussed later while we now turn to the content of his judgement. It is littered with quotes from scholars of international law of the time[11]. His contradictory statements that the victors should be brought before tribunals, while stating that vengeance or retribution are not ethical values, may be described most charitably as being representative of his dilemma. In one of the most revealing sentences, he states that:
‘questions of law are not to be decided in an intellectual quarantine area…we cannot afford to be ignorant of the world in which disputes arise’.
The judgement contains a detailed account of political events of the war. The basic premise seems to be that war in the Far East was the sporadic activity of groups rather than a well-defined conspiracy with clear commanders. This characterisation of war as mere international conflict seems to naturalise the atrocities in war. Pal also tried to justify that Japanese intervention in Chinese territory to prevent a communist take-over would not amount to aggression.
Legally speaking, the judgement clearly stated that new crimes cannot be created under international law and enforced without precedent. Further aggression and conspiracy to commit aggression did not exist as crimes in international law and therefore cannot be created ex post facto. This reflects Pal’s inherent conservative attitude towards the expansion of international law.
Now, turning to Nandy’s article, there are certain startling insights to be found. Contrary to Western authors’ accounts, Nandy’s biographical sketch of Pal clearly indicates that this law-teacher-turned High Court Judge had no formal training in international law (Nandy, 1995, p.70). By placing Pal in the context of the nationalist movement in India, the sympathetic treatment of Japanese may be influenced by the strong Japanese alliance forged by certain Indian nationalists especially in Bengal (Pal’s home state) arguing that the enemy of the British is their friend. The connection between politically active Bengalis and Japan may be traced to their celebration of the 1905 victory of Japan over Russia. In 1946, around the same time as Pal’s appointment, a sensational trial was underway in India of nationalists who fought with Japan against the British army with Nehru as the defence counsel.
http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_1/jayasimha
