Radhabinod Pal’s titanic dissent is regularly romanticized by Japanese nationalists today as reflecting the authentic opinion of India, and more broadly of grateful Asians. Yet in private, from Jawaharlal Nehru on down, the government of a newly independent India was aghast about Pal’s opinion.
As Pal worked, he had quietly passed along chunks of his dissent to the Indian government, where it was circulated to the legal advisers, the Ministry of External Affairs, and the Ministry of Defence. His main contact was K. P. S. Menon, now the foreign secretary (the top diplomat in the civil service), who had met and charmed Pal on a visit to Japan during the trial. Half a year before the verdicts, it was old news for Menon to receive “more instalments of Justice Pal’s monumental judgment.”[1]
As the judgment was being drafted, Pal provided India’s government with an inside look at the judges’ secretive deliberations. Although Menon discreetly called it “purely a personal letter arising out of my accidental meeting with him in Japan,” he promptly shared it with the rest of the government.[2] “We are now going to have at least four different sets of judgments,” Pal explained. He revealed who was in the majority of seven writing the judgment and gave the gist of the dissents coming from the Dutch and French judges, as well as Sir William Webb’s separate opinion. Pal outlined his vast dissent in six succinct points. First, the court’s charter did not define war crimes. Second, even if it did, those definitions were ultra vires—beyond its powers. Third, “Aggressive war is not crime in international law.” Fourth, “We are not here to see whether the victor nations would take any political measures”—a rejection of Bert Röling’s dissent. Fifth, there had been no overall conspiracy established. And sixth, there was difficulty in defining aggressive war. “I am wholly dissenting,” he wrote.[3]
Forewarned, India’s government braced for disaster.[4] Nehru himself, India’s founding prime minister, had long loathed Japanese militarism; he was appalled by Pal’s opinion.[5] Although in later years the prime minister would emerge as a leader of the Non-Aligned Movement, here he still felt the need to reassure the United States and Britain. Menon, a confidant of Nehru, was disgusted: “Not content with holding that Tojo and Co. are not guilty, the learned Judge has chosen to justify Japan’s actions and to condemn those who, after all, were our wartime allies. In fact, from a casual reading of his judgment, I felt that it was a monumental justification of Japan’s conduct during the last three decades.”[6]
Despite its dismay, Nehru’s government decided not to try to muzzle its judge in Tokyo. After checking with the Defence Ministry and the ambassador to the United States, Menon wrote, “All of us agreed that, however extreme the view taken by Justice Pal in the War Crimes Tribunal might be, and however unfortunate the language in which he has couched his views, it would not be expedient for the Government of India to interfere with his judgment.” Ordering him to rewrite his dissent “would be contrary to our best judicial traditions under which the executive does not interfere with the judiciary.” Pal had never formally consulted with his government, nor received orders. India’s government had not given him advice or instructions, nor fettered his individual judgment: “The views he has expressed are his own and not those of the Government of India.” After consulting with Menon, Nehru personally signed off on this approach.[7]
After reading more of the dissent, Menon and the Ministry of External Affairs feared that the United States and other countries would be so outraged that India would have to declare publicly that Pal’s views did not reflect those of India’s government.[8] He anxiously informed India’s diplomats in Tokyo, Washington, and London that “Justice Pal has taken an extreme view, wholly dissenting from the views of his colleagues,” adding that “some of the passages in his judgment amount almost to a justification of Japan’s conduct during the war.”[9]
India’s outspoken high commissioner in London, V. K. Krishna Menon—a grand figure who would go on to become defense minister and ambassador to the United Nations—immediately set up a meeting with Britain’s foreign secretary, Ernest Bevin, to make it clear that Pal did not speak for India’s government. The high commissioner wanted to “dissociate ourselves from the views of Justice Pal which is not shared by us,” fearing that it would alienate China, the United States, the Soviet Union, Australia, and Britain.[10] It was especially awkward to raise this with Bevin, a leading Labour Party imperialist.[11] As the British recorded, the Indian diplomat told Bevin that the Indian judge “exonerated Japan from any guilt for the Second World War or for crimes committed by Japanese forces.” While Pal was writing up his denunciation of European colonialism, his own government had already secretly gone to the British to disavow him.[12]
The British, although grateful to Nehru’s government for being so helpful, were stunned by what Pal had in store.[13] One senior Foreign Office mandarin fumed at “Justice Pal’s obiter dicta on Japanese war-innocence,” while Arthur Comyns Carr described Pal as “an agreeable & sincere individual who unfortunately has a bee in his bonnet about ‘Asia for the Asiatics.’ ” A Foreign Office diplomat sneered, “We can perhaps sympathise with his dislike of War Crimes trials, but his version of events leading up to Japan’s entry into the war is dangerously false.”[14]
At first the British discreetly encouraged India to renounce Pal’s coming dissent.[15] But then Lord Patrick, the British judge, warned that it would be highly improper for governments to comment on a matter before a court.[16] After mulling it over, the British government asked the Indian government not to repudiate Pal. It would be inappropriate to say anything about a court’s proceedings, and an official Indian condemnation would only give more publicity to the dissent.[17] So long as Pal’s opinion did not attract too much attention in Japan, a British Foreign Office official wrote, “silence seems to be best rejoinder.”[18]
Pal had spoken repeatedly about his dissent to the top Indian diplomat in Japan, who now relayed the judge’s self-justification back to Nehru’s anxious government. As Pal pointed out, India’s newborn government could hardly be held responsible for a dissent that had been in the works while the country was still part of the British Empire. He had alerted his intention to dissent to the other judges over a year before India’s independence. He could hardly have been ordered to dissent by an Indian government that did not yet exist.
Pal had a few defenders in India’s government. The Indian ambassador in Washington pointed out that he had a sterling reputation for integrity, independence, and legal knowledge.[19] India’s top official in Japan did not want to repudiate him. While Allied politicians and many lawyers would “bitterly criticise his judgement,” this Indian diplomat wrote, Pal would win acclaim from those international lawyers who doubted Nuremberg’s case that aggression was a crime. Any official disavowal would “only disclose an unnecessary nervousness on the part of the Government which will certainly not enhance our prestige.” Presciently, this Indian diplomat saw how popular Pal’s dissent might become among Japanese: “A public statement of the type contemplated will not please anybody and its only effect will be to destroy the good impression that the judgement may create in Japan.”[20]
Pal’s dissent has taken on mythic stature in Japan, despite the best efforts of the Tokyo judges and American censors to muzzle him.[21] It became celebrated by Japanese conservatives and nationalists, eventually reaching into mainstream consciousness. “He made a fair comment and a fair judgment,” says Shindo Yoshitaka, a right-wing Liberal Democratic Party lawmaker and former minister, the grandson of the famous Japanese commander at Iwo Jima. Pal pointedly called his dissent a judgment, and it has become widely seen among Japanese as the true, enduring moral judgment of the Tokyo trial.
His remarkable dissent is more often invoked than actually read. It is usually described in Japan today as a legalistic treatise, scholarly in its disputations, never excusing historical abuses. In fact, it is something altogether richer and stranger, both more profound and more political. It grows out of a distinctive philosophical view of international relations as a realpolitik struggle where the weak suffer at the hands of the strong, a bleak realist vision that leaves little room for moralistic judgments. It is the only Tokyo judgment that explicitly treats both racism and imperialism as major themes in world politics.[22] Pal alone dared to question the Allies’ motives: “Formalized vengeance can bring only an ephemeral satisfaction, with every probability of ultimate regret.” He perceptively warned against unconscious biases and revenge, cautioning against “keeping the hatefire burning.”
More than that, Pal’s vast dissent is an overtly political document.[23] The bulk of it is a contrarian exoneration of Japanese expansion. “It is not natural to squander the victory,” he wrote in a revealing passage about Japan’s imperial conquests. “It is criminal to squander the victory so as to thus to frustrate the very war aim.”[24] Contrary to what Japanese rightists like to claim, it does indeed do gymnastic apologetics for Imperial Japan’s misdeeds, downplaying atrocities in China and the Philippines.[25]
Certainly the dissenting Pal cut a very different profile from his relative quiescence in Calcutta under the Raj. He went from quietly working under imperial authority to loudly denouncing it. He even upturned his view of law itself: while his early academic writings on Hindu jurisprudence sometimes derived law from human reason, now he took a narrowly positivist reading of international law.
Since his family will not allow access to whatever papers he left, it is not clear what exactly sparked this shift. Most obviously, with the British gone, he could at last speak his mind freely. His dissent clearly shows that he was deeply shaken by Hiroshima and Nagasaki, sternly writing that American arguments for “these inhuman blasts” were not much different from how Kaiser Wilhelm II had justified Germany’s cruel military tactics during World War I.[26] Beyond that, there are several other possible causes. Like millions in the colonized world, he obviously dreaded the resurgence of European imperialism; the postwar struggle for an enduring independence in Indonesia, Vietnam, Burma, Singapore, Hong Kong, and elsewhere was just beginning.[27] The most searing wartime event in Bengal, the terrible famine, is not mentioned in the dissent, but it is quite possible that that calamity soured him on British rule. He must have been encouraged by the victorious freedom struggle in India, which made it easier to criticize European colonialism, as well as destroying any career advantages from deferring to the departing British. He could have been stirred by popular appeals by Nehru, whom he quoted at one point in the dissent and later spoke of with deep admiration.[28] There is nothing in the dissent to suggest that he, like many Bengalis in this period, admired Subhas Chandra Bose in particular. He could have been radicalized by the bloodshed of Partition, which was especially violent in Calcutta. And seeing the bombed-out ruins of Tokyo all around him could have reminded him of Allied hypocrisy.
His grandson Satyabrata Pal says that the judge was driven not by anticolonial wrath but by a hatred of hypocrisy: “Like Indians of his generation, Dadu spent much of his life hoping that the West, whose laws and civilisation he had studied and admired, would actually practise what it preached.”[29]
“I sincerely regret my inability to concur in the judgment and decision of my learned brothers,” Radhabinod Pal began. It was because of the gravity of the case, he explained, that he felt the need to explain himself at such length.
He started with the law, rebutting the claim that the defendants could not get an impartial trial from judges of the victorious Allied countries. In a passage ahead of his time, he cautioned that judges might have a “bias created by racial or political factors,” which “may indeed operate even unconsciously.” Despite that, though, he argued that his colleagues should be evaluated on their moral integrity, putting his faith in the judges’ reluctance to accept anything that comported with their unconscious wishes: “In spite of all such obstacles it is human justice with which the accused must rest content.”
Yet after that, he turned his fire on the majority. Their judgment rested its jurisdiction on the charter, as well as invoking the Potsdam Declaration, but Pal was having none of that. The Potsdam Declaration, like other Allied declarations, were merely announcements of the Allied powers with no legal value. True, Japan had surrendered, but that did not mean that the vanquished were legally wholly at the mercy of the victor. Neither the Potsdam Declaration nor Japan’s surrender entitled the Allies to redefine past actions as crimes, and any trial based on that “will only be a sham employment of legal process for the satisfaction of a thirst for revenge.”
Furthermore, if the Tokyo trial rested on the Potsdam Declaration’s surrender terms, that could only apply to the Pacific War and not to earlier wars such as the “Manchuria incident” (as Pal termed it in the euphemistic Japanese fashion), nor Japan’s incursions into northern China, nor the two border battles with the Soviet Union. He conceded that the China war should be included, but also wrote at one point that the charge of aggression in China was not part of the USS Missouri surrender and that therefore all the accused should be acquitted for it.
As for the charter, Pal believed the same thing he had written as early as July 1946: it could not create new crimes. The charter could only ask for judgment on crimes that already existed in international law at the time the acts were committed, which for him meant only conventional war crimes.[30] Crucially, Pal did not believe that aggressive war had been criminalized. He held a stark realpolitik view of “the system of Power Politics prevailing in international life,” with sovereign states acting coldly to preserve their security and stature.[31] International law did little to change that system; war remained an act of statecraft.[32]
Even the vaunted Kellogg-Briand Pact “failed to make violation of its terms an international crime.” More profoundly, for Pal, the Kellogg-Briand Pact was so weakly written that it wasn’t even really law. It allowed for wars of self-defense, and he claimed that it let each state determine for itself whether its wars should be counted as self-defense. Therefore the only wars it outlawed were those which a government admitted it had intended as aggression—in other words, none of them. This took “the Pact out of the category of law.” As a result, “war in international life remained, as before, outside the province of law.”
The violation of treaties, he held, was not a crime. The prosecution had invoked not just treaties but also customary international law that made aggression a crime, but Pal scoffed that a bunch of pronouncements did not make new customary law. Anyway, a novel customary law that renounced war would crash up against the more fundamental law of the sovereign right of each state to wage war. “In my opinion, no category of war became illegal or criminal either by the Pact of Paris or as a result of the same,” he wrote. “Nor did any customary law develop making any war criminal.”
The majority judgment had not bothered with natural law, and even Webb had largely abandoned it, but Pal trashed it anyway. If there was a natural law, he wrote, it was a fundamental principle of right and wrong, but too lofty to apply to specifics. It could not be accepted as positive law. Nor was there an existing international community that agreed upon what natural law was.[33]
Pal was especially tough on Soviet theories outlawing aggressive war. He scorned Soviet jurists such as A. N. Trainin, who had been invoked by Major General Ivan Zaryanov for conjuring up a crime against peace from the progressive character of international law. The Indian judge scoffed at Soviet claims that since the Moscow Declaration in 1943, which pledged to punish the major Axis war criminals, a new international society had somehow come into being. If there was any widening sense of a common humanity, Pal wrote, he had not noticed it among the powerful nations. Here he powerfully evoked colonialism: since “domination of one nation by another continued to be regarded by the so-called international community only as a domestic question for the master nation, I cannot see how such a community can even pretend that its basis is humanity.”[34]
While the majority had truckled to Zaryanov, Pal castigated the hypocrisy of the Soviet Union, pointing out its aggressions against Poland and the Baltic states.[35] The Soviets had launched “a war against already defeated Japan” in August 1945, which Pal could not consider as self-defense. He did not even want to bring up the Soviet invasion of Finland, he added politely, thereby bringing up the Soviet invasion of Finland.[36]
Pal was equally withering on Western colonialism. If the domination of one nation by another was an international crime, he forcefully wrote, then many of the powerful nations would be criminal. “The entire international community would be a community of criminal races,” he argued. More searchingly, he questioned whether the attacks on colonial possessions could properly be defined as aggression. He wrote that “the so-called Western interests in the Eastern Hemisphere” were based on how past generations of colonialists had turned military violence into riches.[37]
Next Pal denied that any individuals could be held criminally responsible for aggressive war. He accepted that victor nations could punish enemy war criminals, but not for acts of state—and all the deeds in the indictment were in his opinion acts of state. While the majority viewed the defendants as having run an outlaw regime, Pal saw them as merely “working their own constitution” in a legitimate and sovereign government.
Pal doubted that individual criminal punishment would serve any social purpose—neither as prevention, reform, deterrent, or retribution. So long as persons would only face trial if they lost a war, those trials could not prevent or deter crime. All that a trial could offer was retribution, which he saw as revenge. “The mere feeling of vengeance is not of any ethical value,” he wrote.
He was more impressed by the “ingenious” argument that fixing blame on individuals would avoid imposing collective guilt on a whole nation: “By the trial and punishment of those few persons who were really responsible for the war, the world will know that the defeated nation like all other nations was equally sinned against by these warlords.” Still, that goal could equally well be accomplished by a commission of inquiry about war guilt, rather than a criminal trial that strained the law.[38]
In his final salvo about the law of the case, Pal argued that the accused simply had not received a fair trial. Under any circumstances, it would be painfully difficult to discern if a particular Japanese action had been intended as aggressive. The charter “practically discarded all the procedural rules” of national courts, and there was an “almost hopeless confusion” around the rules for establishing conspiracy. Pal was guardedly skeptical about the accuracy of Marquis Kido Koichi’s diary and wholly dismissive of the prosecution’s late introduction of the insider Saionji-Harada memoirs. The court allowed too much hearsay. And under the high-handed Webb, it had idiosyncratically refused to hear evidence about such crucial matters as the threat of Communism in China, Soviet aggression against Finland and the Baltic states, and the U.S. decision to use atomic bombs.[39]
As Pal turned from the law to the facts of the case, his dissent became more rebellious. Seeking to explain Japan’s actions as something other than aggression, he portrayed a vulnerable, overpopulated country beset by enemies: Nationalists and Communists in China, the arrogant United States, the racist British Empire, the predatory Soviet Union. He repeatedly complained of the hypocrisy of Western imperialists, arguing that Japan was doing nothing worse than mimicking them. He justified Japanese colonial annexations of Formosa (Taiwan) and Korea. He offered a case for Japan’s self-defense and its appropriate national interests in Asia, meaning to introduce a reasonable doubt about the aggressive intentions of the defendants.
He rejected the notion that the accused had formed a huge conspiracy to wage aggressive war: “the whole story of the over-all conspiracy is a preposterous one.” Such a doctrine, he wrote, would bring “unprecedented risk and responsibility on the part of those who might be called upon to work the machinery of their own national governments.” He chided his fellow judges, “We must avoid all eagerness to accept as real anything that may lie in the direction of our unconscious wishes.”[40] His dissent became a mirror image of the prosecution’s use of conspiracy: while the prosecutors used conspiracy as an easy way to convict, Pal used the absence of conspiracy as an easy way to acquit.
Reasonably enough, Pal saw a series of disparate decisions by different Japanese cabinets over some seventeen years, not a coherent conspiracy: “Unlike Hitler, no one in Japan was in a continuous position of control.”[41] Going further, Pal accepted the army’s participation in politics without fuss. He saw nothing untoward about military censorship, propaganda, and curtailment of civil liberties; that happened in every country engaged in modern warfare.[42] Apparently unaware of how Imperial Japan had silenced, intimidated, and jailed its critics, he wrote that public opinion had been molded “in a perfectly legitimate manner” but never stifled, leaving the Japanese “complete freedom in respect of their own creeds, beliefs and behaviour.”
Scathing about European colonialism, Pal was nonchalant about the Japanese variety. He voiced no objections to Japan’s seizure of Formosa and Korea—particularly odd since there was no need to weigh in on conquests which happened well before the period under indictment. After Japan’s victory over Russia in 1905, which let Japan grab Korea as a protectorate, Pal wrote that it was “natural” for the Japanese to keep the spoils of war. Accepting Japan’s annexation of Korea in 1910, he approvingly quoted a historian who argued that the Japanese had a better claim to Korea than the British to India, the French to Indochina, the Dutch to Indonesia, or the Americans to the Philippines.[43]
Starting with Manchuria, Pal gave a counter-history which turned the judgment on its head: treating Japan’s conquests as self-defense and denying a conspiracy for aggression. Japan’s position as a great power was precarious, “with Nationalist China, Soviet Russia, and the race-conscious English-speaking peoples of the Pacific closing in on her.”
Japan, he asserted, dreaded a Soviet onslaught through Manchuria, and Japanese there suffered from banditry, civil unrest, and Communist subversion. Citing the League of Nations’ report on Manchuria, he claimed, “Fundamental among the interests of Japan in Manchuria is the strategic importance of this territory to her self-defense and national defense.” Noting that today “the whole world is reverberating with expressions of terror of communistic development,” Japan’s actions in Manchuria could be explained by its own fears of Communism.
Going further, he suggested that Japan, like Western imperial powers encroaching on China, had a legitimate interest in Manchuria—a vast space for an overpopulated Japan to colonize. As an apparent precedent, he pointed to Japan’s annexation of Korea. If Western empires could legally impose themselves on China, so could the Japanese: “the majority of the interests claimed by the Western Prosecuting Powers in the Eastern Hemisphere including China were acquired by such aggressive methods.”
He treated the Mukden clash of September 1931 as possible self-defense by Japanese troops; the railway explosion might have been the handiwork of the Chinese, according to Pal. As for Japan’s subsequent conquest of Manchuria, he argued that Japanese troops had good reason to be there. “The position of the Japanese forces was not that of a force having violated a national frontier,” he wrote. Far from committing aggression, they were merely restoring order there, since the League had no peacekeeping forces of its own.[44]
Pal took much the same approach to Japan’s march into the rest of China: proposing that Japan had acted in self-defense, while denying that its actions could be ascribed to a conspiracy. He wrote that “Japan had acquired some ‘interest’ in China which Japan felt was very vital for her existence. Almost every great power acquired similar interests within the territories of the Eastern Hemisphere and, it seems, every such power considered that interest to be very vital.” Japan’s invasion of China, for Pal, was little different from what Western colonial powers had done: “As a program of aggrandisement of a nation we do not like, we may deny to it the terms like ‘manifest destiny’, ‘the protection of vital interests’, ‘national honour’ or a term coined on the footing of ‘the whiteman’s burden’, and may give it the name of ‘aggressive aggrandisement’ pure and simple. Even then we do not come to the conspiracy as alleged in the indictment.”
For Pal, Japan had a legitimate concern about China’s ongoing civil war and its fear of Communism there—a point that carried a particular punch on the eve of Mao Zedong’s victory. Since there was a “world terror” of Soviet-backed revolution, why should the Japanese not fear Communist advances in China? Communism in China, Pal argued, was not merely an ideology but a rival government with its own army, law, and territory. Since the Nationalists increasingly could not rule their own country, he argued that a government’s protracted inability to maintain domestic order (China) would legitimately allow a foreign power (Japan) to take steps to look after the life and property of its own citizens living there.[45]
Yet Pal said barely anything about the Japanese assault on China in 1937. He gave no account of the Marco Polo Bridge clash, nor of the subsequent surge of Japanese troops into China. At one point, he blamed China’s Nationalist government for causing Japan’s attack: “at the end of 1936 Chiang Kai-shek and the Kuomintang united with the Chinese Communists against Japan. It was this unification, which in July 1937, precipitated the present Japanese war against China.” While he made a tenable case that Japan had reasons to worry about the civil war and Communism in China, he gave no reason why that concern was appropriately expressed by a massive ground invasion.[46]
In the most penetrating and distinctive pages of his dissent, Pal was the sole judge to confront directly the impact of racism. In his newly independent India, many were keenly concerned with racial equality both in their own multiethnic country and abroad, startling U.S. diplomats with popular outrage at Jim Crow segregation and racial discrimination in the United States.[47] Tellingly, the only other judge who considered racism at any length was Mei Ruao, another anticolonialist from Asia, under whose influence the judgment condemned Japan’s attack on China as a racist war.
Pal emphasized how Western racism had alienated Japan, driving it toward war. He argued that Japan’s own inculcation of a sense of supremacy among its people was, while deplorable, a defensive measure against Western bigotry. Having explained Japanese imperialism as a defensive reaction to Western imperialism, he now justified Japanese racism as a response to Western racism.
Throughout the dissent, Pal was conscious of how racism had excluded the Japanese and wounded their psyches. English-speaking Protestants, he suggested, had justified their colonial conquests from Latin America to India by a sense of racial superiority over supposedly primitive peoples. Citing the British historian Arnold Toynbee, he contended that Western imperialists saw themselves as a biblical chosen people doing God’s will in subjugating the Canaanites. (Ironically, here Pal struck an antisemitic note in his own discussion of bigotry.)
During the drafting of the League of Nations’ Covenant, Pal noted, Japan’s delegates in Paris had sought to wipe away centuries of white supremacy, hoping for a more egalitarian world that did not treat nonwhite peoples as naturally inferior. They introduced a clause that all League member states would treat foreigners equally without discrimination on race or nationality. Yet the Japanese had been foiled by the British Empire—in particular, by William Morris Hughes, Australia’s prime minister, who, according to a history that Pal quoted, “constituted himself Champion of the cause of White Supremacy.”[48] The Indian judge lamented, “Neither the League nor any other international organization ever could get rid of this race-feeling.”
Pal warned against “the movement on the part of the white nations on the Pacific rim to exclude Asiatics on economic and racial grounds,” as well as cultural and biological arguments for blocking Asian immigrants. An overpopulated Japan, he noted, was told it could not send its citizens to white countries, nor China, nor Siberia. He condemned the United States laws which had barred immigrants from Asia, calling one such act “an overt political humiliation” for Japan.[49] The exclusion of Japanese immigrants created a festering sense of inferiority: “The white nations did not show any consideration for the national sensibilities of the excluded nations including the Japanese.”
The prosecution, he wrote, had complained about aggressive educational policies “designed to create in every youthful mind a feeling of racial superiority.” Yet such racial supremacy was “a failing common to all nations. Every nation is under a delusion that its race is superior to all others, and, so long as racial difference will be maintained in international life, this delusion is indeed a defensive weapon.” Furthermore, the leaders of a nation might believe in good faith that a sense of superiority could “protect the nation from the evil effects of any inferiority complex, and that the western racial behaviour necessitates this feeling as a measure of self-protection.”[50]
Elsewhere in his dissent, he came close to accepting a possible war crime in order to discredit white supremacy. In 1942, the Japanese army had paraded British and American prisoners of war through the streets in Korea, hoping this would drive home to the colonized Koreans the power of the Japanese Empire. Although such public humiliation of prisoners was against the 1929 Geneva Convention, Pal wrote that the Koreans’ “faith in white supremacy” was such that the Japanese “simply believed that the very fact that white soldiers could be taken prisoner would demolish that myth. I do not see why this should be looked upon as an insult or exposition to public curiosity.”[51]
Pal understood that racism still ran deep in world politics. He rightly scorned present-day politicians who argued that segregation was necessary to avoid “Mongrelization,” while movingly hoping that World War II “has succeeded in killing this race-feeling and in humbling every mind so as to make it capable of thinking in racial equality.” His consideration of racism was a crucial perspective that was conspicuously lacking in the majority judgment.
Yet throughout his dissent, Pal was oddly blasé about Japan’s alliance with the quintessential racist power, Nazi Germany. Passionate elsewhere, he turned conspicuously abstract about Adolf Hitler. In Pal’s realpolitik theory of international relations, he argued that alliances grew out of shared threats, not domestic affinity or ideological uniformity: Japan and Nazi Germany were pushed together by a common fear of Communism. Pal never asked how an alliance with a regime as bloody and aggressive as Hitler’s Germany, already at war in Europe, could really be considered defensive. Despite his keen eye for racism in politics, he said next to nothing about Nazi racial obsessions.[52]
In the end, Pal believed that the Japanese defendants had considered their own fostering of prejudice “to be a necessary measure of protection for their race.” He concluded, “I cannot condemn those of the Japanese leaders who might have thought of protecting their race by inculcating their racial superiority in the youthful mind.”[53]
Giving an alternative history of Pearl Harbor, Pal depicted a peaceful Japan forced into war by the United States. “The evidence convinces me that Japan tried her utmost to avoid any clash with America,” he wrote. “There is clear indication that Japan did not start with any design of the Pacific war which ultimately happened.”
By supporting China after Japan’s invasion, he argued, the United States had made itself a belligerent against Japan. He saw American political and military support of China as steps just short of war. American economic sanctions against Japan for its invasion of China, he believed, were in essence an act of war: “the employment of a boycott against a country engaged in war amounts to a direct participation in the conflict.”[54]
Pal saw nothing untoward in Japan’s march into Indochina, since aid to China was flowing through there. Yet he objected to the U.S. economic sanctions and oil embargo on Japan for taking southern Indochina: “This was declaration of economic war.” He argued that the sanctions violated the Kellogg-Briand Pact, as well as the Nine-Power Treaty and other pacts.
These Allied economic sanctions drove Japan to negotiations with the Netherlands East Indies to secure oil—or, if that failed, to an invasion. In its drive for raw materials, he contended, Japan was no different from the Western powers except for the misfortune of a late start on imperialism. He pinned the real blame on the United States, claiming that U.S. military and political leaders unanimously believed “that these economic sanctions against Japan would drive Japan to the very steps which Japan as a matter of fact pursued.”[55]
He was untroubled by Tojo Hideki’s ascension to prime minister. Tojo could have controlled the army, Pal wrote, and there was reason to believe that “he did not advocate waging war immediately with America.” Clearing him of criminal intentions, he pronounced that Tojo held an honest opinion that Japan’s very existence as a nation was in grave danger. He contended that Tojo, “to the best of his ability as a statesman, continued the diplomatic move, but ultimately failed in coming to any honourable settlement with the U.S.” He declared that “people occupying Tojo’s position should be capable of coming to a decision and should have the courage of his conviction. What followed, did so as a matter of course.”[56]
Pal argued that the Washington talks had foundered on American intransigence. His best evidence of Japanese compromise, though, was its proposal that after a peace deal in China its troops would remain there for some twenty-five years—although Tojo himself privately admitted that meant close to forever. “Twenty-five years might have been a reasonable period in the circumstances or it might have been unreasonable, but that is not the question before us,” Pal shrugged.
In contrast, he saw the Hull note as all but a declaration of war. Cordell Hull, he asserted without evidence, had already decided to break off negotiations. Pal wrote that “the note amounted to the maximum terms of an American policy for the whole Orient.” He quoted an American critic writing that even Monaco or Luxembourg would have taken up arms against the United States after getting such a note.[57]
Since the United States had already launched an economic war, Pal suggested, Pearl Harbor was merely an escalation of a conflict already under way: “After the embargo of July 1941 the only question was when and where Japan would strike the blow that precipitated war.” He argued, “The evidence does not entitle us to characterize the Japanese attack as a sudden, unexpected, treacherous act committed while relations between the two countries were peaceful.” Japan was not really starting a war: “justly or unjustly, rightly or wrongly, the Allied Nations had already participated in the conflict by these actions and any hostile measures taken against them by Japan thereafter would not be ‘aggressive.’ ”[58]
In Japan today, Pal’s right-wing admirers routinely declare that he never sought to deny Japanese atrocities. This is simply false. To the contrary, he was avowedly skeptical about the evidence of the slaughter of civilians in China and the Philippines. He doubted not just some of the evidence that Mei privately considered weak but also some of the best stuff, particularly credible eyewitness accounts of killing and rape at Nanjing. In later years, Pal would deny some of the facts of the Holocaust.
He cautioned against demonizing wartime enemies. “Stories of war crimes generate passion and desire for vengeance,” Pal wrote, pointing to World War I propaganda. He doubted the veracity of the jingoistic wartime press, engaged in a “vile competition” to whip up public fury. He argued that “a sort of unconscious processes were going on” in the minds of those who sought to prosecute defeated warlords. “The result might be a partial distortion of reality. There would always be some eagerness to accept as real anything that lies in the direction of the unconscious wishes.”
While Pal admitted that the accounts of Japanese atrocities were similar across Asia, for him this was not necessarily evidence of a systematic policy. It was equally possible that these patterns were the product of “some common source shaping the allegations and evidence”—apparently meaning Allied propaganda. Even eyewitnesses were not to be trusted: “we cannot always believe men who saw ‘something happen’ even when they saw with their own two eyes.” Although Japan’s techniques of torture were alike far and wide, he refused to believe any government would formulate such methods.
Returning to his theme of Western racism, he speculated that the Japanese capture of vast numbers of Allied prisoners was a humiliation that had to be avenged by demonizing the Japanese. The Japanese victories “indicated a result of the fight which, as every white nation felt, completely undermined the myth of white supremacy. A certain amount of propaganda against the non-white enemy might have been thought of to repair the loss.”
Of course, Chinese accounts of mass atrocities could hardly be dismissed as the revenge of humiliated white supremacists. Yet Pal assiduously doubted the evidence about the massacre and abuse of Chinese civilians. Without mentioning that the Japanese army had burned its documentation, he wrote that there was “absolutely no evidence on the record to show that there was any order, authorization or permission” to slaughter civilians and disarmed soldiers in Nanjing, Guangzhou, Hankou, Changsha, and several other Chinese cities. There was “absolutely no evidence of this alleged atrocity” in Guangzhou; he was not convinced there had been any atrocities in Hankou or Guangdong province; the evidence about enormities in Changsha was unsatisfactory; he was not convinced by accounts of rape and killing in two cities in Guangxi; he discounted “stray cases” elsewhere in China.[59]
Pal’s prime example of an overhyped atrocity story was the Nanjing massacre itself. It was impossible, he wrote, to avoid “some suspicion of distortion and exaggeration.” Although he did write that “even making allowance for everything that can be said against the evidence, there is no doubt that the conduct of Japanese soldiers at Nanking was atrocious,” he spent page after page trying to call into question the horrors there.
He sowed doubt about rape in particular. Seeking to discredit the witnesses more broadly, he concentrated on debunking two eyewitnesses in particular: Hsu Zhuanying, a Nanjing railway official, and Reverend John Magee, an American Episcopal minister. Pal complained that Hsu and Magee “accepted every story told to them and viewed every case as a case of rape.” It was, he wrote, “difficult to read this evidence without feeling that there has been distortions and exaggerations.”
Pal did not explain exactly why these firsthand accounts under oath were implausible or falsified. He was unconvinced by Magee’s eyewitness testimony about catching a Japanese soldier in the act of raping a Chinese woman, which to him merely suggested “instances of misbehaviour” by Japanese troops which the witnesses “unhesitatingly assert…as cases of rape.” Hsu had testified to seeing numerous rapes and hearing about more, yet Pal asserted doubts about one instance when Hsu said he had personally seen a Japanese soldier raping a woman in a bathroom, and another when Hsu and other Chinese had found a naked Japanese man sleeping and brought him to the police as a suspected rapist. Impugning the motivations of the witnesses, Pal noted that these were “accounts of events witnessed only by excited or prejudiced observers.”
Pal’s doubts became almost epistemological. The witnesses, he asserted, could only have seen the events fleetingly. How were they so sure what they had seen? “In many cases, their conviction was induced only by excitability which perhaps served to arouse credulity in them and acted as a persuasive interpreter of probabilities and possibilities. All the irrelevancies of rumours and canny guesses became hidden under a predisposition to believe the worst, created perhaps by the emotions normal to the victims of injury.”[60]
Pal discounted eyewitnesses to the massacre in Nanjing, as well as in Hankou and Changsha. He favored the testimony of the Japanese commander at Changsha over that of a homeless Chinese refugee who had fled the shootings. One Nanjing man testified that he had personally seen some forty people being taken away and machine-gunned to death by Japanese troops; a few days later he had seen a group of young men being bayoneted. “This seems to me a somewhat strange witness,” Pal wrote. “The Japanese seem to have taken such a special fancy to him as to take him to various places to witness their various misdeeds and yet spare him unharmed.” Apparently this witness lacked credibility because he had not been killed.
Judges have a duty to be skeptical of all testimony. It is always hard to get courtroom-ready evidence about rape, where often only a victim and a rapist were present during the crime, or for massacres, where the best witnesses are dead. It is true that people who have been subjected to crimes against humanity are often hostile to those who committed them. Such problems are endemic to all modern war crimes prosecutions. Yet Pal glided smoothly from asking questions about specific incidents to refusing to accept a vast mass of persuasive evidence. Confronted with these gruesome facts, he wished them away.
Pal conceded that, even “making every possible allowance for propaganda and exaggeration,” there was still overwhelming evidence of Japanese atrocities against civilians and prisoners of war. Yet he concluded that not a single defendant could be held responsible for ordering or allowing these enormities. The Allies’ desire for vengeance, he wrote, should be quenched by the prosecutions they had already mounted for numerous lower-ranked perpetrators.
None of the defendants bore guilt for the Nanjing massacre, according to Pal: “I do not see why, from this evidence, we should be driven to the conclusion that such atrocities were the results of the policy of the Japanese Government.” He all but commended General Matsui Iwane for his conduct at Nanjing, contending that the Japanese commander had issued impeccable orders and had gallantly ordered compliance when he learned that “notwithstanding his strict warning, there were breaches of military discipline and morality.” While Pal had to concede that such measures had been ineffective, he pronounced them sincere.
He was skeptical of testimony about war crimes against civilians in the Philippines, Burma, Indochina, Malaya, Singapore, and Indonesia. In Burma, he wrote, “At the worst these are all stray instances of cruelty”; in Borneo, “One would expect much better evidence”; in Timor, he saw only “stray cases.” He was no more moved when the victims were Indians who had been jailed, beaten, or forced into brothels.
In the Philippines, he was confronted with a vast body of gruesome evidence of torture, beheading, rape, mutilation, and bayoneting of civilians. “The devilish and fiendish character of the alleged atrocities cannot be denied,” he acknowledged. “However unsatisfactory the evidence may be, it cannot be denied that many of these fiendish things were perpetrated.” Still, he saw no need to punish any top leaders. The men who had committed these crimes had already been prosecuted by lower-level Allied courts; the Tokyo defendants “had no apparent hand in the perpetration of these atrocious deeds.”
Pal wrote that “the rape of Manila is likened to the rape of Nanking,” meaning to discredit it. He shrugged off the slaughter and mass rape in Manila as “stray instances” that would be committed by any army. He threw the dictionary at the prosecution: “There is no evidence, testimonial or circumstantial, concomitant, prospectant, restrospectant, which would in any way lead to the inference that the government in any way permitted the commission of such offenses.” He acquitted sixteen political and military leaders, including Tojo, of having either ordered or allowed war crimes: “War is hell. Perhaps it has been truly said that if the members of the government can be tried and punished for happenings like this, it would make peace also a hell.”
Having downplayed Japanese enormities from China to the Philippines, Pal found his voice only for the slaughtered civilians of Hiroshima and Nagasaki. If there was anything in the Pacific War that approached Kaiser Wilhelm II’s ruthless methods of warfare during World War I, he wrote, “it is the decision coming from the allied powers to use the atom bomb. Future generations will judge this dire decision.” He asked “whether it has become legitimate by such indiscriminate slaughter to win the victory by breaking the will of the whole nation to continue to fight.” He sternly compared the Americans who decided to use the atomic bombs to the Nazis: “if any indiscriminate destruction of civilian life and property is still illegitimate in warfare, then, in the Pacific war, this decision to use the atom bomb is the only near approach to the directives of the German Emperor during the first world war and of the Nazi leaders during the second world war. Nothing like this could be traced to the credit of the present accused.”[61]
Pal was less skeptical about Japanese abuse of prisoners of war, repeatedly writing that their behavior had been “inhuman” and saying that it had been right to punish the war criminals in lower-level Allied courts. Yet again he managed to acquit every single senior defendant. The sergeants and captains could hang; the generals and ministers should walk free.
Having begun by attacking the novel crime of aggressive war, Pal finished by sidestepping the most conventional of war crimes. Although the proper treatment of prisoners of war was well established in the laws of war, he wrote that there was no law to apply. Japan had not ratified the Geneva Convention and he argued that the Hague Convention on land warfare only applied if all its signatories had ratified it; since Italy and Bulgaria had not, the whole thing was junk.
Pal explained the abuse of prisoners of war as the accidental result of Japan having to cope with overwhelming numbers of surrendering enemy troops. Rather than faulting Japan for breaking the laws of war, he suggested that those laws had to be updated so that they were not a permanent obstacle to achieving military goals. The United States, he noted, had not been willing to give up the military advantages of the atom bomb because of the indiscriminate damage it inflicted on civilians. Why should not Japan similarly mold international law to suit its battlefield imperatives?
In addition, he treated the abuse of prisoners of war as a matter of profound Japanese custom. There was, he wrote, a fundamental difference between Japanese and Western views of shame in war. The Japanese fought to the death, a psychological trait that he said ran deep in their national life, while its dissolute enemies would prudently quit fighting. Quoting an anthropologist, he asserted that the Japanese believed that Western prisoners “were disgraced by the mere fact of surrender.”
Despite considerable evidence of common methods of torture and abuse across Asia, he wrote that “no such similarity of pattern has been established as would entitle us to hold that all these inhuman treatments were the result of the government policy or directive.” The Allies had formally protested these war crimes against their prisoners, but Pal saw no reason for the Japanese defendants to see these complaints as anything more than enemy propaganda, meant to make people “swallow the most bizarre fairy tales.” There was no obligation, he argued, for a minister to resign from a wartime cabinet as an act of opposition to war crimes. Alternatively, when prisoners had been abused—jammed into “hell ships” or forced to labor in the war effort, for instance—he shrugged that these were acts of state, for which none of the accused could be held criminally responsible.
The Bataan death march was “really an atrocious brutality,” he wrote, and this time he did not question the testimony of survivors. Yet he did not see how any of the accused could be held responsible for it—not even Tojo, who had been prime minister and army minister. “It is an isolated instance of cruelty,” Pal wrote. “I cannot connect any of the present accused with this incident.”
Nor did Pal convict any of the accused for the Burma–Thailand railway. He did not doubt that vast numbers of prisoners had died along the line, but pinned the horrors on “the overzealousness of the local officers.” He blamed a general, a lieutenant colonel, and a corporal, but concluded that officers at that rank had already been dealt with by Australian, Dutch, and U.S. tribunals. The railway was a major strategic initiative meant to open up a front against India and choke off Chinese supply lines, obviously the stuff of high-level deliberations, yet Pal saw no reason to think that the top men of Japan “should have even foreseen such brutalities.” Nor did he convict anyone for using prisoners of war for military work. He did hold that Tojo was fully responsible for putting Allied prisoners to work on the railway, but wrote that “this violation of the rules regarding the labour of prisoners of war is a mere act of state. It is not criminal per se and I would not make him criminally liable for it.”
The execution of Allied bomber crews gave Pal a chance to turn the tables on the Allies. He saw the airmen in essence as war criminals, although the law had not caught up with conscience. If the Allies wanted to set up war crimes tribunals that could make new law, he argued, then so could the Japanese. Overlooking how shoddy the Japanese trials had been, he denied that any senior Japanese leaders could be faulted for allowing the torture and summary executions of Allied bomber crews. All the same, he made a powerful case that indiscriminate aerial bombardment of civilians ought to be a war crime, filling a gaping hole in the laws of war. In one of the rare instances during the Tokyo trial when the bombing of cities—a defining feature of the war—was explicitly addressed, he highlighted the Japanese public’s fury at the firebombing of Tokyo, Nagoya, Osaka, Kobe, and other cities. That rage reached its zenith after Hiroshima and Nagasaki. Pal wrote that “the real horror of air warfare is not the possibility of a few airmen being captured and ruthlessly killed, but the havoc which can be wrought by the indiscriminate launching of bombs and projectiles. The conscience of mankind revolts not so much against the punishment meted out to the ruthless bomber as against his ruthless form of bombing.”[62]
Pal concluded his dissent resoundingly: “I would hold that each and everyone of the accused must be found not guilty of each and every one of the charges in the indictment and should be acquitted of all those charges.” Having weighed Nanjing, Pearl Harbor, Bataan, Manila, and all the rest, he found not a single defendant guilty on a single count.
He turned against his friend and fellow dissenter Bert Röling, who had argued for punishing the accused for public order, invoking the example of Napoléon Bonaparte’s peremptory exile at St. Helena. Since the victors after the Napoleonic Wars had not bothered with a trial, Pal sensibly questioned how this nonprecedent could be used to build international law. Furthermore, while Napoléon or Hitler were tyrannical usurpers, Pal insisted that the Japanese leaders were entitled to the prerogatives of legitimate rulers of a sovereign state. “The constitution of Japan was fully working,” he wrote, notwithstanding the assassinations and coup attempts by army extremists.
Haunted by Hiroshima and Nagasaki, he recoiled at the early days of the Cold War. Quoting from a New York Times editorial about the atomic bomb, he wrote, “The real question arising in a genuinely anxious mind is, ‘can mankind grow up quickly enough to win the race between civilization and disaster?’ ” He warned that the vengeful punishment of defeated leaders would only distract the public from thinking about the fundamentals of peace and world union.
He declared the trial a mockery of justice. The Tokyo court looked like it was made “only for the attainment of an objective which was essentially political though cloaked by a juridical appearance. It has been said that a victor can dispense to the vanquished everything from mercy to vindictiveness; but the only thing the victor cannot give to the vanquished is justice.” There was blame to be assigned to the Allies, not just their defeated Japanese foes. Instead of Allied vengeance, he called for mercy: “The name of Justice should not be allowed to be invoked only for the prolongation of the pursuit of vindictive retaliation. The world is really in need of generous magnanimity and understanding charity.”
In an opinion remarkable for its forceful discussion of racism, he ended by admiringly quoting a famous white supremacist. He gave the last word to Jefferson Davis, defeated in the Civil War, who is most commonly admired by American bigots. The Confederate leader’s words are today attributed to Pal in a stone monument to him at the Yasukuni war shrine in Tokyo: “It is very likely that ‘When time shall have softened passion and prejudice, when Reason shall have stripped the mask from misrepresentation, then justice, holding evenly her scales, will require much of past censure and praise to change places.’ ”[63]
Jawaharlal Nehru was horrified by Pal’s dissent.[64] “In this judgment wild and sweeping statements have been made with many of which we do not agree at all,” he wrote privately.[65] When an old friend of Nehru proposed officially publishing the dissent as a landmark in international law, the prime minister refused, personally signing off on a reply stating that Pal had been on the Tokyo court only in his capacity as a judge, not representing India’s government.[66]
Major Indian newspapers made the dissent front-page news for a day but mostly did not follow up.[67] Many of them were as scathing as Nehru. The Times of India editorialized that Pal’s dissent had “no relation whatever to the facts of recent Japanese history,” while scorning how “Mr. Justice Pal explains away the doctrine of aggressive racial superiority which the Japanese themselves preached and practised and which brought such suffering and humiliation most of all to fellow-Asiatics in China, the Philippines, Korea, Burma and Siam.”[68] The Times of India’s legal correspondent wrote that Pal should have refused to join a tribunal that he thought was illegitimate, and roundly condemned his dissent: “Mr. Justice Pal has done very dubious service to the cause of international justice by insisting that a callous and brutal disregard of human rights and decencies, and of the rules and customs of civilised warfare, shall go unpunished so long as an ideal machinery of international justice is not set up.”[69] Yet some Indians rallied to Pal. After a Calcutta newspaper published serial extracts from his dissent, one prominent Indian barrister scoffed that “there was nothing judicial about the Tokio tribunal,” merely “crude and ineffective attempts at clothing the sword with something like a wig.”[70]
British officials were stung. “It is indeed astonishing that Mr. Justice Pal should have sat through a trial of such length while rejecting the very principles upon which it was based,” snarled a British Foreign Office official. “His resignation would doubtless have been welcome to his colleagues on the Tribunal. His judgement will now be welcome to General Tojo and many of the Japanese.”[71] The Canadian judge complained that Pal had come to Japan with the fixed intention of torpedoing any judgment that convicted the accused. The top British diplomat in Japan speculated—falsely—that Pal might have been prompted by Nehru’s government to dissent in order to win favor among the Japanese.[72]
The immediate response in Japan was quieter than Nehru’s government had feared, with the Japanese press under censorship largely supporting the majority judgment.[73] Although General Headquarters kept Pal’s dissent from being published during the occupation, its gist quickly made it into Japanese and American newspapers.[74] While the full impact was muffled, it did impress some nationalists. “This is a courageous shout of the colored races against the white race!” enthused a lieutenant commander in Japan’s navy who enterprisingly got ahold of a copy.[75]
Awkwardly, Pal’s dissent went down well with the convicted Japanese at Sugamo Prison. “His words cover all we might want to say about such matters,” said Matsui Iwane. “A typical Indian, he views things from a philosophical standpoint.” After spending three days reading Pal’s dissent, Itagaki Seishiro declared himself “deeply impressed,” incongruously adding how much he admired Mahatma Gandhi.[76]
When Pal returned to India, he grabbed headlines again. He told a reporter that it was highly improper to suggest, as Webb had, that the emperor should have been put on trial: “The Emperor was not on trial before us and we have absolutely no material which will entitle us to say whether he is guilty or not.” He noted that the defendants in court had been respectful throughout, accepting their convictions without any show of defiance. The Japanese, he said, were a disciplined nation that would rise again. Having learned the futility of war, they would succeed in economic and industrial reconstruction.[77]
Pal’s dissent ruffled the most feathers in Australia.[78] One reporter wrote that he “attacked the white races in the Pacific, particularly Australia,” and accused him of a “racial, rather than juridical, finding.”[79] “Between lines of his judgment runs an under-current of instinctive ingrained Indian hostility to the old-model British Raj,” wrote a Sydney columnist. “This, consciously or unconsciously, predisposes him in favor of fellow-Oriental enemies of the white West.” In a somewhat less crude passage, that columnist quoted an attorney at the Tokyo court urging all Australians to read Pal’s dissent carefully: “It will enrage most of them. But, whether they like it or not, it is the voice of Asia—a new intelligent Asia. And, whether they want to or not, they or their sons will have to listen to it—more loudly and more ominously—in years to come.”[80]
With screaming front-page headlines of “Blames Us for Jap War Plans,” the Australian press castigated Pal for accurately denouncing William Morris Hughes as a white supremacist who had blocked Japanese efforts to enshrine racial equality in the League of Nations covenant.[81] Proving the Indian judge’s point, Hughes replied that open immigration among League members would have meant that Australia “would have been flooded by Japanese—every one a trained soldier—and when the 1939–45 war broke out they would have swarmed into Australia overnight. Yes, I opposed the racial equality clause. Had I not done so I would have been a traitor to Australia.”[82]
After a few jittery weeks, the Indian government concluded it would be better to ride out the storm without comment, while privately making sure that the British government knew of its disapproval of Pal’s dissent.[83] Nehru’s team was particularly relieved that despite widespread Chinese fury at Japanese war criminals, the Chinese press did not engage with Pal’s dissent.[84] “It is comforting to think that Justice Pal’s judgment has not evoked as much criticism as we expected,” K. P. S. Menon wrote. “However it was just as well that it was not read out or published at length.”[85] A frustrated Nehru secretly wrote, “In view of suspicion that Government of India had inspired Pal’s judgment, we have had to inform Governments concerned informally that we are in no way responsible for it.”[86]