Treasonable Conspiracies in Paris, Moscow and Delhi: The Legal Hinterland of the Tokyo Tribunal

Kirsten Sellars, 'Treasonable Conspiracies in Paris, Moscow and Delhi: The Legal Hinterland of the Tokyo Tribunal' in Kirsten Sellars (ed.), Trials for International Crimes in Asia (Cambridge University Press, 2015), pp. 25-54.

30 Pages Posted: 18 Jan 2016 Last revised: 28 May 2019

See all articles by Kirsten Sellars

Kirsten Sellars

Australian National University (ANU) - Coral Bell School of Asia-Pacific Affairs

Date Written: 2015

Abstract

It is widely held that the idea of transplanting ‘conspiracy’ from domestic law into international criminal law was first conceived by an American working in the US War Department in the final year of the Second World War. Yet this account is not the whole truth. It is merely a part – and an atypical part at that – of a much bigger story that had begun a full quarter of a century earlier. Discussion about internationalised modes of liability had first arisen during the closing phase of the First World War, when French lawyers had grappled with the problem of prosecuting Wilhelm II and his circle; and it developed further during the Second World War, when Soviet lawyers contemplated similar actions with respect to Hitler and his minsters. This civil law approach made more sense than the Americans’ conceptual leap from the Marino conspiracy to the Nuremberg Charter, and more accurately reflected the climate of realism that gave rise to international criminal law.

Treason trials provided a template for international tribunals, and in the process, the latter spawned new charges of international treason. Interaction between the different bodies of law created the potential for ideas to travel both ways, and this is exactly what happened at the British-run treason trial convened to try senior figures in the Indian National Army at the Red Fort in Delhi in 1945. The defence counsel, Bulabhai Desai, turned the treason charges back against the prosecution, stating: ‘What is now on trial before the Court is the right to wage war with immunity on the part of the subject race for their liberation.’ Thus, from within a treason trial emerged a legal critique of the supremacy of domestic security law. This argument strongly influenced Indian advocates and judges, one of whom, Radhabinod Pal, would take it to the International Military Tribunal for the Far East, and use it to challenge the charges of conspiracy to commit ‘crimes against peace.’

Keywords: Treason, Conspiracy, Complicity, Common Plan, Crimes Against Peace, Louis Malvy, Ferdinand Larnaude, Albert Geouffre De Lapradelle, Wilhelm II, Kaiser, Andrei Vyshinskii, Moscow Trials, Evgenii Pashukanis, Aron Trainin, Indian National Army, Red Fort

JEL Classification: K33, K41

Suggested Citation

Sellars, Kirsten, Treasonable Conspiracies in Paris, Moscow and Delhi: The Legal Hinterland of the Tokyo Tribunal (2015). Kirsten Sellars, 'Treasonable Conspiracies in Paris, Moscow and Delhi: The Legal Hinterland of the Tokyo Tribunal' in Kirsten Sellars (ed.), Trials for International Crimes in Asia (Cambridge University Press, 2015), pp. 25-54.. Available at SSRN: https://ssrn.com/abstract=2716916

Kirsten Sellars (Contact Author)

Australian National University (ANU) - Coral Bell School of Asia-Pacific Affairs ( email )

Hedley Bull Building
130 Garran Road
Acton, ACT 2601
Australia

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