The trials of imperialism: Radhabinod Pal’s dissent at the Tokyo tribunal
| Author | Latha Varadarajan |
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| DOI | http://doi.org/10.1177/1354066114555775 |
| Subject Matter | Articles |
European Journal of
International Relations
2015, Vol. 21(4) 793 –815
© The Author(s) 2014
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DOI: 10.1177/1354066114555775
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The trials of imperialism:
Radhabinod Pal’s dissent
at the Tokyo tribunal
Latha Varadarajan
San Diego State University, USA
Abstract
At the end of the Second World War, the leaders of the defeated Axis powers were
tried for crimes against peace, war crimes, and crimes against humanity in two specially
established international military tribunals. Unlike at the vaunted Nuremberg trials, the
judgment of the less-illustrious Tokyo tribunal was not unanimous. In his dissenting
opinion, Justice Radhabinod Pal of India comprehensively disagreed with all aspects of
the trial, finding all defendants “not guilty” of the charges leveled against them. Despite
being considered quite incendiary at that time, the dissenting opinion has been largely
ignored by International Relations scholarship analyzing the development of legal norms
and institutions in global politics. Notwithstanding its many limitations, the questions
raised in Pal’s dissent about criminality, power, and justice, while situated in a specific
historical moment, remain far from settled. This article provides a second look at Pal’s
dissent in order to recover its unique and critical insights into the relationship between
imperialism and the development of international law.
Keywords
Imperialism, International Criminal Court, international criminal tribunals, Nuremberg,
Radhabinod Pal, Tokyo tribunal
Introduction
In the immediate aftermath of the Second World War, the victorious Allies established
the International Military Tribunal for the Far East (IMTFE), also known as the Tokyo
tribunal. The institution’s stated goal was to bring to justice the major war criminals in
Corresponding author:
Latha Varadarajan, Associate Professor, Political Science Department, San Diego State University, 124
Nasatir Hall, 5500 Campanile Drive, San Diego, CA-92182-4427, USA.
Email: lvaradar@mail.sdsu.edu
555775EJT0010.1177/1354066114555775European Journal of International RelationsVaradarajan
research-article2014
Article
794 European Journal of International Relations 21(4)
the Far East. Following closely on the heels of the Nuremberg trials of the Nazi war
criminals, the establishment of the IMTFE was celebrated by contemporary commenta-
tors as another sign that the international community was willing to “stay the hand of
vengeance” in pursuit of a more inclusive, just world order (Jackson, 1946: 3). Hailed by
its presiding judge as the “greatest trial in history,” the Tokyo tribunal was inaugurated
with great fanfare (Kopelman, 1991: 380). However, by the time the tribunal rendered its
verdict, it had already begun to recede from the headlines in the Anglo-American press,
starting a long slide into historical ignominy. In the decades that followed, there seemed
to be an unspoken consensus among Western scholars to ignore both the tribunal and its
role in shaping the post-war international legal order, which came to be seen instead as
predominantly shaped by the “Nuremberg legacy.”1
In recent years, however, there has been a gradual renewal of interest in the Tokyo
tribunal among scholars who have highlighted aspects as varied as the legal basis of its
charter, the institutional ramifications of the proceedings, and its role in shaping the
United States’ and Japan’s post-war identity (Boister and Cryer, 2008; Futamura, 2008;
Totani, 2008). Insofar as it examines one of the most underappreciated moments in post-
war history, this scholarship is indeed laudable. This rekindled interest, however, appears
largely to be part of an effort to rehabilitate the tribunal as an intrinsic part of the
Nuremberg legacy. In this context, it is not surprising that much of this scholarship skims
over a crucial aspect of the tribunal’s proceedings. Unlike Nuremberg, which was char-
acterized by a happy consensus among the judges about the purpose of the trial, as well
as its outcome, the Tokyo trial was marked by disagreement, turmoil, and outright dis-
sension. At judgment time, three of the 11 judges filed dissenting opinions. While two of
those opinions expressed specific reservations about the conduct of the trial, the dissent
of the Indian judge, Radhabinod Pal, was unique in that it disagreed comprehensively
with the majority judgment, finding all the defendants “not guilty” on all counts. Despite
being publicly available since 1952, Pal’s dissenting opinion has largely been overlooked
by International Relations (IR) scholars, appearing, if at all, as a footnote in analyses of
international legal institutions pertaining to criminal justice.2 In this article, I argue that
Pal’s dissent at the Tokyo tribunal is an episode of great significance that compels us to
reconsider not just the meaning of a specific international legal institution, but also the
broader structural logic from which it emerged.
Pal’s unique standing as the fly in the ointment of the post-Second World War efforts
at institutionalizing international justice should be sufficient reason to rescue his dissent
from the dusty cabinet of historical curiosities. What makes it particularly noteworthy,
however, is that the dissent is not merely an accounting of the procedural issues with a
specific trial or tribunal. While it does register — comprehensively and vehemently —
concerns surrounding the prosecution of the Japanese leaders by the Allies in Tokyo, a
substantial part of Pal’s analysis focuses on the political context in which the idea of
institutionalized international justice had emerged. The crux of Pal’s argument was that,
for all the claims of a new and progressive world order, global politics in the mid-20th
century was still fundamentally defined by imperialism. Admittedly, Pal cannot be
regarded as a full-fledged theorist of this concept, and he seemed moreover to apply it
selectively when it came to his appraisal of Japanese conduct in Asia. Nonetheless, his
dissent does develop in a compelling manner some of the essential theoretical elements
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