In 1946, while finding himself in an isolated position on the International Military Tribunal for the Far East (adjudicating the war crimes committed by the Japanese in World War II), Justice Radhabinod Pal delivered a well-researched and soundly-reasoned dissenting verdict. To him, despite the depravity of the actions of the Japanese, there was no legal basis for charging the accused for crimes of aggression. His deeper contention, however — as is evident from a reading of his voluminous yet eloquent dissenting opinion — lay with the patent hypocrisy manifested by the circumstances. The irony of the Western colonial powers sitting in judgement over the ill-conceived imperialistic actions of a now shambolic Japanese empire was not lost on him.
As Justice Pal argued, Japan was fundamentally attempting to mimic the West’s imperialist methods and colonial ideology, to fuel its economic enrichment at great loss to and oppression of its colonies. But his dissent was much to the chagrin of the white majority on the bench. In Tokyo in 1946, his concerns were met with snide and snobbish insults, undermining Justice Pal’s position as a jurist. The reactions betrayed the all too well-known racism and inequality of that time. It also betrayed the immoral and greedy colonialist spirit of the jurists from the West, who wanted to condemn the Japanese for the same actions the “empires” of their countries had committed across Asia, Africa and South America.
These prefatory remarks are relevant as we head towards the centenary of the Jallianwala Bagh massacre in April. The massacre took place on April 13, 1919: More than 300 unarmed civilians, including a large number of women and children, were gunned down indiscriminately. As per one record, almost 2,000 more were grievously wounded when the English general Reginald Dyer ordered his troops to machine gun unarmed protesters in a park. The protests were sparked off because the colonial state had backtracked from its promises. It had agreed with the Indian National Congress and other leaders of the Indian Independence movement, to accord Dominion Status to India, far short of complete independence, but involving some amount of self-governance. In return, they sought India’s support in fighting World War I. This support included payment of millions of pounds in taxes, and providing men, arms and ammunition for the “glorious empire’s” military. After the war was over, the government reneged on its promises.
The heinous act at Jallianwala had all the trappings of a crime against humanity and should have placed General Dyer in the unenviable company of Hideki Tojo, Heinrich Himmler and all the great villains of World War II, in the annals of history. However, in 1919, the English government did not severely penalise the cold-blooded murder of innocents. It also rewarded General Dyer. As we head towards the centenary of this great tragedy, it is pertinent to question on what authority did these erstwhile colonial powers impose higher ideas of morality, embedded in notions of the rule of law at the Tokyo Trials.
While judges from the Allied nations — mainly the US, the Netherlands, and Britain — were all in favour of handing out death sentences to the Japanese war criminals for crimes against humanity, their own governments perpetrated similar atrocities for decades (or centuries) within their “colonies”. To paraphrase Justice Pal, it was indefensible to arbitrarily and hypocritically impose newly-created international laws on individuals who could be tried and prosecuted in their own country’s courts, especially when many people across Asia and Africa continued to reel under colonial rule and face similar violence and oppression.
While the Jallianwala Bagh tragedy cannot be reversed, an unconditional apology from the British government is long overdue and would demonstrate its recognition and remorse for this dastardly attack. Calls for such a gesture were issued in February in the British parliament by parliamentarians of Indian origin, Meghnad Desai, and Raj Loomba. They said that the British government had to “make amends and finally provide a closure” to the Indian people. As Shashi Tharoor rightly proclaimed in his now-famous speech at the Oxford Union, reparations or an official apology from the British government should not to be viewed as a tool for empowering Indians. Instead, it offers Britons a chance to atone for the wrongs that should never have been committed or celebrated in the first place.
(The writer is a senior research fellow at Vidhi Centre for Legal Policy. Views are personal)
— This article first appeared in the March 6, 2019 print edition under the title ‘Acknowledging The Crime’