He was an Indian judge. Justice Pal was educated at the University of Calcutta.
He was appointed by the British Raj to sit in judgment at the Tokyo War Crimes Trial.
Justice Pal found that the allegations against the defendants at Tokyo were almost entirely true. He declared that it was hypocritical that the Allies misdeeds not be considered. He noted that Nippon has assisted India’s fight for independence.
Pal found all the defendants not guilt on all charges.
May 3 1946. International Military Tribunal for the Far East.
Pal was not there for the opening day.
Sir William Webb of Australia was President of the Court. Judges from China and New Zealand
Secret agreement – if an individual judge disagreed with the judgement their opinion would not be revealed until the end. tHAT WAS the propsoal of Prof Raling of the Netherlands. He was only 39 at the time. That was the way in the Netherlands.
Pal came 2 weeks late.
Pal disputed the tribunal’s rules – its charter. Promulgated by MacArthur.
This invented crimes against peace, aggressive war,
the defence said this created criminal liability for acts that were not crimes at a the time was unjust. Webb dismissed this motion
Pal sent a memo to judges saying the accused could not be tried for new war crimes. New laws cannot be enforced retroactively. It is unacceptable to trial being for things that are criminalised post factum.
Government of India was also surprised by Pal’s views.
India had intended to appoint a different justice.
Sending an Indian judge heightened Indian prestige. It emphasised India’s role as a victor. This would also dignify Britain’s suzerainty.
India had to pick a judge. They selected Wadia who refused. A judge in Allahabad said no.
India did not wish to lose the right to dispatch a jurist.
A former Judge of the Calcutta High Court was nominated 6 days before the tribunal was scheduled to open.
October 1946 – prosecution presented evidence
Many facts about Japan’s conduct were stated in open court.
judges argued about the charter
justice Pal publicly denounced it
Lord Patrick opposed him. He argued the judges must loyally abide by the charter. He circulated a memo urging those who objected to leave Tokyo. Authority of the judges based on charter.
R B Pal answered saying Lord Patrick’s memo was specious. It was misplaced to encourage a fellow judge to tender his resignation/
Patrick remained in touch with His Majesty’s Government
New legal nostra from Nuremberg
crimes against peace
crimes against humanity
Lord Patrick was elected President of the Scottish Bar Association aged 48. He became a judge of the Court of High Justiciary.
Lord Patrick’s views reflected judicial opinion.
Patrick said the judges were obliged to obey the charter. Judges do not create law. Judges simply apply it and maintain it. This charter gave rise to the establishment of the tribunal.
Allegations against the defendants
waging war in China and other lands
the leaders premeditated these wars. conspiracy. Anglo American legal concept. planning a crime is an offence
Pal stayed at the Imperial Hotel. He wrote a 260 page dissenting opinion. Foreign policy can never be a conspiracy
”conspiracy is not yet a crime in international law. As a result I would dismiss all the counts based on this accusation.”
Pal was no poodle of the executive. He was independent
Pal wrote 1200 pages by hand – these are notes.
He condemned Occidental colonialism
”Western countries command countries in the Easter hemisphere solely because they acquired them through armed violence. If properly scrutinised none of these would stand the test of being just war”
he slammed Japanese rule in Manchuria as copying western colonialism.
expansionism was an idee fixe in Japan
Proshand Pal is the son of Justice Pal
His father seemed tranquil but had very firm convictions
Proshand saw Gandhi as the father of the nation
Pal was poor and low caste. He was a Hindu which was pacifist. Vaishnava
He abominated violence. Was revolted at atrocities committed by the Imperial Japanese Army
Bataan Death March was an atrocious brutality.
120 km march in 9 days. 65 000 Americans and the Filipinos. Those who fell were killed. Frequent beatings
Nanking massacre – ”even making every possible allowance for propaganda and exaggeration the conduct of the Japanese armed forces was atrocious against civilians.”
”these are the instances of atrocities perpetrated against civilians… the devilish and fiendish character of these crimes cannot be denied” – on crimes by Nipponese soldiers in the Pacific
he lambasted the Hiroshima bomb. It was a crime close to a Nazi style crime
he adhered strictly to impartiality
Judges from Canada and New Zealand aligned with Lord Patrick
Pal would not back down
Presiding Judge Webb failed to unite the bench. He became antagonistic towards Patrick
Webb wondered if this trial would unmake all the good work made at Nuremberg
Patrick wondered if the Commonwealth judges should recuse themselves
A BRITISH diplomat told MacArthur of the travails
the British thought that MacArthur would not allow a judge who refused to follow the charter
diplomat reported to London. MacArthur did not take a dramatic view of the situation
Prof Raling said MacArthur expressed his view that the tribunal was a farce — too long and complex. He wanted a brief court martial
MacArthur wanted an all American court
I C T F E was only founded by order of Washington and with the concurrence of other Allied governments. Truman ordered it.
Ernest Bevin would not hear of Patrick’s proposal. To abandon the Tokyo Tribunal would be cataclysmic he said.
It was seen as a British mission to have a successful trial at Tokyo.
If aggression is not a crime then this would have grave repercussion for future generations. If launching an aggressive war was a permissible policy then it would jeopardise the peace of the world
Prof Roling and Pal sat beside each other
Pal tried to sway Roeling. He sent notes to Roeling.
”Judges from the victors countries are seized by feelings of hate and revenge so they are minded to accept aggressive war as a crime after the fact. ”
- R B Pal
Roeling had been a judge in the Netherlands during the German Occupation. He displeased the occupiers and was demoted. because he was not a collaborator he was sent to Tokyo
Roeling felt it was an adventure. He felt conceited and wished to be punitive
he travelled all over the land/ he flew over Hiroshima
He said it had a profound influence on him
he summarised Pal’s arguments. Roeling grapsed its reasoning. He came to sympathise with it.
He was not actuated by fury or a desire to inflict vengeance.
Patrick tried to build a majority for a guilty verdict. Patrick was anti social. He suffered TB and heart disease. He was not affable.
Patrick campaigned for a united verdict. He was worried there would be 11 separate judgements making the trial into a nonsense
The trial was no fix. There were squabbles among the judges
Roeling said that the he disliked the draft verdict. He said the draft is terrible. It was a rehash of Nuremberg
The Dutch Government was conscious of Roeling’s views. They sent him the opinion of a Netherlands jurist. They pleaded with him to sign the majority opinion and not to sign a separate one.
This was political meddling
1948 – October. Pal was elated that Roeling would give a dissenting opinion
”we are not here to minister to the worst prejudices of the world’s public opinions and mustn’t sacrifice our own opinions. Justice demands this.”
court adjourned in 1948.
Pal wrote his opinion ceaselessly and hardly left the hotel
1 2 3 5 pages dissent
he exposed the errors of Japan’s wartime leaders
He said they were perhaps wrong and misled themselves. They were not conspirators.
”To deem legal acts at that time as a crime post factum is unacceptable.”
”Prior to the outbreak of world war 2 international law had not designated this action as a crime or as illegal.”
He did not support Japanese aggression. He said aggression was equally loathsome whether committed by British or Japanese
Roeling wrote a dissenting opinion. He considered the responsibility of each defendant
he acquitted 5 politicians and diplomats – they had been against the war
He said of 25 accused 20 were guilty of crimes aaginst peace
he assigned blame to those who had failed to prevent atrocities in the field including those whom others said should only get life sentences. He said they deserved death
he was ” in the development of the prohibition of war. ” Roeling.
There was a majority
US, Soviet, China, Filipino – group of 7. more than half of the bench
Pal wrote to Webb. He dissented on law an fact. wanted his opinion to be read in open court.
majority verdict found all 25 guilty and gave death to 7
crimes against peace and crimes against humanity were allowed to stand
5 dissenting judgments
minority opinions were not read aloud by webb
1951 San Francisco Peace Treaty.
Pal returned to Japan thrice
he wrote ”A Proclamation of Peace” a book abominating war
he went around Japan for a month
”Japan is a beautiful country. Why would people born and raised among such lovely nature would ever consider war. To think war is a way to achieve peace is a grave error.”
- R B Pal
Pal said post war peace constitution of Japan was inspirational
” force has no utility whatsoever I can say without exaggeration.” – R B Pal
1966 he died aged 81.
Roeling became a professor. foremost Dutch scholar of international law
Institute for peace research. Lobbied for abolition of nuclear arms
Lord Patrick returned to post of judge at the Court of High Justiciary. Died soon.
crimes against Humanity
CHarter of the International Criminal Court
what is an aggressive war? Crimes against peace are not considered clear crimes under I C C charter
main questions at Tokyo – how to pass judgement on war and how to secure peace