Echoes from the Tokyo Trial

In the post-Trump world, international law has got itself into a tangle. The President has publicly proclaimed that he is not really constrained by international law; that his only constraint is what he believes to be the right thing to do. Previous American governments, even if they shared Trump’s views in private, treaded carefully when it came to deviating from international agreements. Trump has taken a sledgehammer to international law; the United States has retreated from international agreements across the spectrum: trade law, environment law, public health, and nuclear disarmament.

I notice that many international law professors have paused in their analysis of the finer points of international law to defend the idea of international law itself. International law’s existential crisis is not new. Exactly eighty years ago, an international criminal trial raised similar issues about the legitimacy of international law. This case is important to us, partly because it involved a famous dissent by an Indian judge.

After the Second World War, in 1946, the Allied powers tried Japanese military and political officials for war crimes at the International Military Tribunal for the Far East, popularly known as the Tokyo Trial. The accused were tried for different kinds of crimes under international humanitarian law, including ‘crimes of aggression’ for waging wars without justification and ‘crimes against humanity’ for killing innocent civilians. While the tribunal – comprising judges representing 11 countries – convicted the accused, Justice Radhabinod Pal from Calcutta, India, wrote a powerful opinion dissenting from the majority.

Justice Pal’s 1,235-page dissenting judgment acquitted the Japanese of their alleged crimes. Stripped of technicalities, his dissent made two independent points. He exposed the hypocrisy of the Allied powers by arguing that convicting the Japanese for crimes against international peace, security, and humanity would be unfair when the Allied nations were also guilty of similar crimes. After all, by the time the Tokyo Trial began, the US had dropped nuclear bombs on Hiroshima and Nagasaki.

Justice Pal’s second proposition was more interesting. He pointed out that international law norms ought to be in place before they are enforced. They can’t be retrospective in character. Crimes of aggression and crimes against humanity were not established in any international instrument at the time of the Tokyo Trial. Justice Pal was disinclined to punish someone under international law unless nations had agreed upon rules covering such situations.

What contemporary lessons can we draw from this case? For starters, the lack of agreement on international norms and the hypocrisy in powerful nations invoking international law only so long as and until it is convenient for them were features of the international zeitgeist then just as they are now. Justice Pal brought this out vividly at a time when India was finding its place in the world. It was an act of courage and a dissent of intent. He respected international law but wanted it to be understood and applied in a way that was consistent with fair play and international comity. International law cannot be merely the victor’s justice.

The world is disenchanted with international law, but can it afford to be? If international law were merely a fig leaf for self-interest, this would be understandable, but should we hold such a cynical view of the law? International law has its success stories. The Chemical Weapons Convention, signed by 193 nations, has ensured that the use of chemical weapons has been contained significantly. But the Tokyo Trial teaches us that international law does not succeed in a top-down approach; that it works only when it’s supported by a unanimous or near-unanimous consensus among states, and is based on principles that are not seen as unfair and self-serving. Perhaps this brings international law close to international politics, and if so, we are better off appreciating its limitations, lest we burden it with unreal expectations.

The afterlife of the Tokyo Trial is also interesting to behold. Justice Pal had a quietly dignified career in India and was revered in Japan for his dissent, with shrines dedicated to his memory. But he was not really a significant figure in the Indian public imagination until Netflix came up with its dramatisation of the Tokyo Trial. Irrfan Khan played Justice Pal in the drama series. Even the Netflix series spends more time on the judge from the Netherlands, who had a mildly rebellious role to play. But Justice Pal will be remembered both for his condemnation of international law and his respect for it.

The writer is a law professor who thinks that the law is too important to be left to the lawyers.

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.