All Responsible For War Crimes Must Be Prosecuted, Including The Victor & The Vanquished, To Ensure Universal Peace: Justice RF Nariman

All those responsible for war crimes, the victor and the vanquished should be prosecuted if we need world peace that has so far eluded us, Justice (retd.) Rohinton Fali Nariman said on Sunday while highlighting the flaws of the Nuremberg and Tokyo trials conducted after World War II.

Former Supreme Court judge Justice Rohinton Nariman delivered a lecture on "The Nuremberg and Tokyo Trials - The Rule of Law Vindicated", in Nagpur.

“Without looking at the victor or the vanquished, arraign those who are responsible for war crimes. For it is only then that we can as human beings look forward to universal world peace that has thus far eluded us and probably will elude us in the near future”, Justice Nariman said.

He said that a charter defining war crimes should be drawn up to avoid the criticism that war criminals were convicted ex-post facto. “A utopian dream which may become reality of the future is first having a charter first drawn up in an organisation like the UN clearly outlining what are war crimes so that you never have a finger pointing at you that they are ex-post facto”, he said.

Justice Nariman also called for appointment of judges from neutral countries to ensure an unbiased trial process, free from the influence of the warring parties.

The lecture was organized by the High Court Bar Association at Nagpur as part of the Late Shri Vinod Bobde Senior Advocate Memorial High Court Bar Association, Nagpur Study Circle series.

Chief Justice of the Bombay High Court, Devendra Kumar Upadhyaya, attended as the Chief Guest, alongside retired Justice BP Dharmadhikari, former Chief Justice of the Bombay High Court who is the Patron Chief of the Study Circle.

In the lecture, Justice Nariman recounted the genesis of the Nuremberg Trials, highlighting Justice Robert Houghwout Jackson's pivotal role in the establishment of the trials following the conclusion of World War II.

Justice Nariman shed light on the composition of the judicial panel, the eventual sentences handed down, and the accused that got acquitted. Justice Nariman also elaborated on the legal arguments and the defence's plea of "just following orders," which the tribunal ultimately ruled could only be considered a mitigating circumstance.

Justice Nariman underscored the distinctions between the Nuremberg and Tokyo Trials, highlighting the broader international representation within the judicial panel in the latter. He recounted the dissenting opinions that emerged during the Tokyo Trials, especially focusing on Justice Radha Binod Pal's 1200-page dissenting judgment.

Justice Nariman highlighted the importance of Justice Pal's contribution, which significantly influenced future military tribunals. Justice Pal's judgment suggested that Japan might have been compelled to wage a defensive war against the colonial powers of the West. Further, Justice Pal noted that the crimes in question were only deemed as such under the charter and not when they were initially committed. Based on this reasoning, Justice Pal advocated for the acquittal of all those accused during the trials.

According to Justice Nariman, the most important aspect of Justice Pal's dissent was his assertion that the victors themselves should have been arraigned for their actions, particularly the dropping of two atomic bombs on Hiroshima and Nagasaki. Justice Nariman noted that a substantial number of civilians, ranging between 150,000 and 250,000, perished as a result. This brought up a critical question: if the victors were administering their own justice, what happened to the rule of law?

Justice Nariman said that three points emerged from the Tokyo Trials. Firstly, he noted the that Italians were not arraigned. Secondly, he highlighted that the Head of Japan was not arraigned, speculating that it might have been so for pragmatic reasons. However, he remarked, “…but surely pragmatic reasons cannot absolve Adolf Hitler if a new German state were to be formed.” Lastly, Justice Nariman noted that the war crimes committed by the victors, which were never scrutinized.

Justice Nariman concluded by emphasizing the need for clear international standards for war crimes and the essential role of impartial judges from neutral countries to ensure the fair administration of justice. He advocated for the impartial arraignment of all those responsible for war crimes, regardless of their status as victor or vanquished, as a critical step toward achieving universal world peace that has remained elusive thus far.

Compiled by Amisha Shrivastava