Abstract

The Second World War marked a pivotal moment in the evolution of international law, particularly through the establishment of war tribunals. This paper examines the Tokyo Trials through the lens of Justice Radha Binod Pal’s dissenting opinion, which critiqued the tribunal’s foundation and highlighted the inherent biases of victor’s justice, colonialism, and Western hegemony. Pal’s dissent majorly challenged the retroactive application of laws and the tribunal’s jurisdiction as well as also criticised the exclusion of colonial violence from legal scrutiny. His arguments laid the groundwork for Third World Approaches to International Law (TWAIL), which critically analyses how international legal systems perpetuate power imbalances rooted in Western hegemony. The paper traces the historical development of victor’s justice, from ancient practices to modern tribunals of Tokyo and Nuremberg. It highlights how victors have historically imposed unilateral justice on the vanquished, a trend evident in the Treaty of Versailles and the post-war tribunals. Justice Pal’s dissent questioned the legitimacy of these tribunals, arguing that they lacked jurisdiction over pre-war actions and violated principles of legal certainty by applying ex post facto laws. His critique resonates in modern contexts, such as the challenges faced by the International Criminal Tribunal for the former Yugoslavia, and for Rwanda where similar issues arose. Pal’s dissent also addressed the ambiguous definition of aggression in international law, arguing that aiding nations with arms could constitute aggression. This perspective has influenced TWAIL, which critiques Western states for their involvement in conflicts for economic gain. The paper further explores the selective application of law, particularly in cases like the Iraq War and the trial of Saddam Hussein. Illegitimacy of colonial aggression and the need for equality among nations remains relevant, as seen in disputes over Western Sahara and Kosovo.

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