[Note: Yuki Tanaka's article is followed by a companion article by Richard Falk]
The War Crimes Trials and the Issue of Indiscriminate Bombing
On May 14, 1946, ten days after the opening of the International Military Tribunal for the Far East (popularly known as the Tokyo War Crimes Tribunal), Captain George Furness, a member of the defense counsel, cast serious doubt on the fairness of the Tribunal conducted by the victorious nations in World War II:
‘We say that regardless of the known integrity of the individual Members of this Tribunal they cannot, under the circumstances of their appointment, be impartial; that under such circumstances this trial, both in the present day and history, will never be free from substantial doubt as to its legality, fairness, and impartiality.’1
For this reason Captain Furness urged that the trial be conducted "by representatives of neutral nations free from the heat and hatred of war."2
After Furness’ presentation, Major Ben Bruce Blakeney, another American member of the defense counsel, turned to the issue of "Crimes Against Peace," and argued that such crimes "do not constitute charges of any offense known to or defined by any law."3 He reasoned that war, and even waging a war of aggression, is not a crime, and cannot be defined as just or unjust. It is neither legal nor illegal. Moreover, he pointed out that, if considered a crime, waging war is an ex post facto crime, so that a ‘Crime Against Peace should be dismissed by the Tribunal as beyond its jurisdiction to entertain.’4
Blakeney then argued that war is the act of a nation, not of individuals, so that killing in war cannot be charged as murder. In order to emphasize his point, he took the bold step of addressing the extremely sensitive issue of the atomic bombing of Hiroshima:
‘If the killing of Admiral Kidd by the bombing of Pearl Harbor is murder, we know the name of the very man who[se] hands loosed the atomic bomb on Hiroshima, we know the chief of staff who planned the act, we know the chief of the responsible state. Is murder on their consciences? We may well doubt it. We may well doubt it, and not because the event of armed conflict has declared their cause just and their enemies unjust, but because the act is not murder. Show us the charge, produce the proof of the killing contrary to the laws and customs of war, name the man whose hand dealt the blow, produce the responsible superior who planned, ordered, permitted or acquiesced in this act, and you have brought a criminal to the bar of justice.’5
Thus he implied that if the killing of combatants of the U.S. forces by Japanese forces during the Pearl Harbor attack was regarded as "murder," by the same token the U.S. President, Harry S. Truman, and the U.S. Army Chief of Staff, George C. Marshall, i.e., two of the American leaders ultimately responsible for the atomic bombing of Hiroshima, could be accused of "murder" as well. In order to invalidate the new legal definition of "Crimes Against Peace," he directly challenged the dominant popular American idea at the time that the atomic bombing of Hiroshima and Nagasaki was a rightful act of revenge for the surprise attack on Pearl Harbor. In fact Blakeney was convinced that the atomic bombing of Japanese citizens was clearly a violation of the Hague Convention IV, the Laws and Customs of War on Land. He clearly pointed this out in court on March 3, 1947. However, the evidence the defense counsel asked the court to examine in assessing the atomic bombing was rejected by a majority decision by the judges, and deliberation on this issue was never conducted.6
At the Tokyo War Crimes Tribunal, the issue of the indiscriminate bombing of many Chinese cities by Japanese Imperial Forces during the Asia Pacific War was never raised, despite repeated wartime condemnation by the US government of Japan’s aerial attacks on Chinese civilians. It is obvious that the reason for not bringing this matter before the court lay in America’s own conduct against Japanese civilians, which took the form of the most extensive aerial campaign against civilians, destroying sixty four Japanese cities with incendiary bombs and two with atomic bombs. The fact that the Nazis’ indiscriminate bombing of various cities in Europe and England was never a topic of criminal investigation at Nuremberg was probably due to the same reason.
In the end, Judge Pal from India, was the only person, among eleven judges who presided over the Tokyo War Crimes Tribunal, who made a critical comment on the atomic bombing, albeit briefly. In his dissenting judgment, he wrote:
‘It would be sufficient for my present purpose to say that 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 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.’7
Interestingly, there was one exception at a B class trial conducted in Yokohama, in which the indiscriminate bombing of Japanese cities by American forces became the focus of a heated discussion in court. This was at the trial of General Okada Tasuku, who issued orders to execute several crew members of B-29 bombers, who had been captured by the Japanese after being shot down near Nagoya city, without conducting proper court-martial trials. Dr. Joseph Featherstone, an American lawyer acting as chief defense counsel for General Okada, argued that, because the American B-29 crews were engaged in unlawful indiscriminate bombings which killed and wounded many Japanese civilians, they were criminals rather than POWs. Featherstone claimed that the execution of those Americans was therefore legitimate. Although the court found General Okada guilty and sentenced him to death, it seems that Featherstone’s argument and the evidence he presented to the court had considerable influence on the relatively lenient judgments handed down to Okada’s subordinates who had carried out Okada’s orders. A number of American judges and prosecutors sent petitions to General MacArthur, requesting that he commute the death sentence to life imprisonment, however their appeals failed to change MacArthur’s decision.8
Okamoto’s Struggle for Justice for the Victims of the Atomic Bombings
One of the Japanese members of the defense counsel of the Tokyo War Crimes Tribunal was a lawyer named Okamoto Shoichi, who also acted as a member of the defense counsel for General Okada and assisted Featherstone. Okamoto’s experience with these American lawyers seems to have had considerable influence on his thinking concerning justice for the Japanese victims of aerial indiscriminate bombings, including the atomic bombings of Hiroshima and Nagasaki. Okamoto pursued a legal struggle to bring justice to the A-bomb survivors long after the conclusion of the Tokyo War Crimes Tribunal. In February 1953, Okamoto sent a copy of a booklet he had made to 64 lawyers in Hiroshima and Nagasaki. In "Genbaku Minso Wakumon (Questions and Answers on the Civil Lawsuit over the Atomic Bombings)," he requested the assistance and cooperation of his colleagues in Hiroshima and Nagasaki in order to file an action against the U.S. government over the atomic bombings of these two cities. The introduction explained how he came to entertain this idea.
‘I was a member of the defense council of the International Military Tribunal for the Far East for over two and half years from June 1946. What was always in my mind during this period was how unfair it was that, due to the simple fact that they won the war, the victor nations had never been questioned about their responsibility for some of their actions which violated international law. I was, however, quietly hoping that the leaders of the victor nations would at least express remorse for the atomic bombing of Hiroshima and Nagasaki after the peace treaty had been concluded.
‘A year has already passed, yet there is no sign of such action. It is utterly deplorable to see the U.S. and the U.K., nations in which Christianity is the dominant religion and humanism the base of democracy, behave in this manner.
‘While I was working as a member of the defense council of the IMTFE, I was already thinking of bringing a civil suit to pursue the responsibility for at least the atomic bombing of Hiroshima and Nagasaki after the peace treaty had come into effect. Thus I told my friends that I would like to file a suit in the court of jurisdiction against the leaders and nations who participated in this illegal action.
‘As the peace treaty became effective last year, I have renewed my decision and conducted some research on this issue. Consequently I now believe that it is possible to carry out this lawsuit in the U.S. and U.K., in particular in the U.S.’9
In this booklet, Okamoto explained the essential legal issues pertaining to the atomic bombing, providing his own answers to the important questions surrounding this contentious issue. It is clear from his arguments that he wished to apply the Nuremberg principle to the atomic bombing of Hiroshima and Nagasaki. His arguments can be summarized in the following four points.
1) The use of atomic bombs should be banned in accordance with the Regulations respecting the Law and Customs of War on Land annexed to the Hague Convention IV.
2) The atomic bomb is one of the most inhumane and brutal weapons ever created, capable of exterminating the entire human race. Therefore, the immunity of liable individuals in the name of "act of state" must not be applied in this case. The Nuremberg Trial and Tokyo Trial set precedents for this.
3) The liability for individual or corporate victims can be placed with two groups: one is that of the American individuals who participated in the decision making for the atomic bombings, the other is the U.S. government.
4) This case should be brought to an American court, as one of the main purposes of this trial is to judge the crime committed by the victor nation, and to this end it requires close assistance and cooperation from American lawyers with a strong sense of universal justice.10
It is clear that Okamoto was hoping to gain support from American lawyers, believing that many American law professionals would share the views of Furness, Blakeney, and Featherstone, who had made concerted efforts to defend accused Japanese wartime leaders by utilizing their knowledge of international criminal law. However, he realized that his trust in American lawyers was misplaced when Roger Baldwin, a well-known American pacifist and chairman of the International League for the Rights of Man, now known as the International League for Human Rights, responded to Okamoto’s request in March 1954. Baldwin was known in Japan as a human rights activist, having come to the country in 1947 on the invitation of General Douglas MacArthur, Supreme Commander of the Allied Powers, to foster the growth of civil liberties in that country. In Japan, he founded the Japan Civil Liberties Union, and later the Japanese government awarded him the Order of the Rising Sun for this contribution. Baldwin informed Okamoto that he was in complete opposition to Okamoto’s plan, as he believed the case had no legal base whatsoever and that it would be harmful for the U.S. – Japan bilateral relationship. Two months later, A. Wiling and F. Auckland, two members of the Los Angeles branch of the American Civil Liberties Union, for which Baldwin was the national leader until 1950, contacted Okamoto and offered their assistance as attorneys for this controversial case. For this service, however, they requested US$25,000 (equivalent to 9 million yen) as a minimum fee. At that time this was an unimaginably large sum of money for the A-bomb survivors, most of whom were suffering from various kinds of illness and struggling to survive without adequate medical and social welfare support from their own government. In fact, Okamoto was conducting his work at no charge and personally covered all operating costs, including the production cost of the aforementioned booklet.11
Not only American human rights activists and lawyers but also Japanese lawyers and local politicians in Hiroshima and Nagasaki were reluctant to support Okamoto’s bold proposal. For example, the then mayor of Hiroshima and A-bomb survivor, Hamai Shinzo, declined Okamoto’s request to join this scheme, claiming that it could become a mud-slinging political contest with the U.S., although he said that he would not oppose private citizens joining the plan to pursue the judgment of the atomic bombing in strict accordance with international law. Most lawyers in the two cities, including those who were A-bomb survivors, were also unenthusiastic about taking legal action against the biggest economic and military world power. They regarded such action as unrealistic and success impossible, although some doubtless shared Okamoto’s view that indiscriminate attack on civilians with atomic bombs clearly constituted a war crime. It was the official opinion of both the Lawyers Association of Hiroshima and that of Nagasaki that an international tribunal established upon the international treaty should be created to deal with international crimes such as the atomic bombing of Hiroshima and Nagasaki, but they recognized that it would be extremely difficult to instigate legal action against the U.S. government to claim damages, given the language of the peace treaty concluded in 1951. Article 19 (a) of the Peace Treaty between the Allied Powers and Japan stated that ‘Japan waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of a state of war, and waives all claims arising from the presence, operations or actions of forces or authorities of any of the Allied Powers in Japanese territory prior to the coming into force of the present Treaty.’12
The socio-political atmosphere in Japan during the occupation may also have deterred popular willingness to pursue justice for the victims of the atomic bombings. The U.S. occupation policy in Japan to suppress all information on the atomic bombings remained in effect until April 1952, when the Allied occupation ended.13 Because of the lack of accessible information due to this policy, the Japanese people at that time knew little of the nature of the atomic bombings and their aftereffects. It was not until 1954 that strong anti-nuclear sentiment suddenly erupted and spread all over Japan as a result of an incident in which radioactive dust from the American hydrogen bomb test called the Bravo shot fell, not only on many Marshall Islanders, but famously on a Japanese tuna fishing boat called the Lucky Dragon No.5, irradiating all twenty-three fishermen. Captain Kuboyama Aikichi died on September 23 in 1954. Nationwide anti-nuclear sentiment led to the creation of Gensuikyo (Japan Council Against A- and H-Bombs) in 1955, which launched a powerful movement opposing U.S. use of nuclear weapons in the Korean War. Yet even this active anti-nuclear trend did not directly transfer to nor invigorate support for Okamoto’s plan to seek legal justice for surviving A-bomb victims. It is difficult to understand the general passivity towards the "legal movement" in contrast to the vigorous popular anti-nuclear "political movement" of this period. It may have been due in part to the Japanese popular notion that, as a nation defeated in war, it was necessary to accept the consequences of defeat. In addition, many who were deeply involved in the anti-nuclear movement of this period were acutely aware of Japan’s responsibility for atrocities committed against Asian nations, hence may have been reluctant to support a movement to claim damages from the atomic bombing, even damages for victims.
Faced with the lack of support both from American and Japanese lawyers as well as from the public, Okamoto gave up the plan to bring the case to the U.S. court. He decided instead to appeal to a Japanese court. Fortunately a small group of A-bomb survivors in Hiroshima called "Genbaku Higaisha no Kai (The Association of A-bomb Survivors)" expressed full support and willingness to cooperate with Okamoto. Although this small group of A-bomb survivors later became the core of the large nation-wide A-bomb victims’ lobbying organization, "Nippon Gensuibaku Higaisha Dantai Kyogikai (Japan Confederation of A- and H-Bomb Sufferers Organization), at that time it was still a minor, non-political organization set up predominantly for mutual help among survivors, who had little public assistance or aid to cope with their harsh living conditions and protracted illness. Through the Association of the A-bomb Survivors in Hiroshima and those in Nagasaki who had contact with this organization, eventually five A-bomb survivors from Hiroshima and Nagasaki were selected in 1955 to become plaintiffs, ten years after the atomic bombings.14 Amongst them, the hardship experienced by Shimoda Ryuichi, a then 57-year-old man from Hiroshima, seemed to symbolically represent the lives of all the A-bomb survivors. The operator of a small, family-based factory, he lost four daughters and one son, aged between 4 and 16, as a result of the atomic bombing. He, his wife (40 years old at the time of the A-bomb attack) and their youngest child (a two-year-old boy), survived. In 1955 he had keloid burns all over his body caused by the bombing and suffered from liver and kidney disorder. Due to these health problems, he was unable to work, and both his wife and child suffered from persistent fatigue, headache and listlessness, i.e., the so-called "A-bomb disease," a typical symptom of irradiated survivors. They were living in poverty, relying upon a small amount of money sent to them by his sister once a month.15
A 33-year-old lawyer born in Mihara City of Hiroshima Prefecture, Matsui Yasuhiro, joined Okamoto’s struggle to bring justice to the A-bomb survivors. Matsui had entered Kansai University Law School in Osaka in 1941, but was sent to China as a young army trainee paymaster in December 1943 before completing his study. He lost many relatives in the atomic bombing. His brother and an uncle were A-bomb survivors. After the war he entered and graduated from the Law School of Waseda University, beginning work as a lawyer in Tokyo in 1949. Okamoto, who was based in Osaka, often came up to Tokyo to discuss with Matsui important issues surrounding their case and to examine the opinions of various international law scholars. Together they prepared a complaint, and in April 1955, appealed to the District Court of Tokyo.16
There have been only a few scholarly analyses of this so-called Shimoda case both in Japan and the United States. Amongst them are the work of Professor Richard Falk, ‘The Shimoda Case: A Legal Appraisal of the Atomic Attacks on Hiroshima and Nagasaki,’ published in the American Journal of International Law in 1965, and a Japanese article written by Professor Fujita Hisakazu, entitled ‘Genbaku Hanketsu no Kokusaihoteki Saikento (A Re-examination of the Judgment of the A-bomb Trial),’ published in the Law School Journal of Kansai University in 1975. As both articles were written specifically for readers in legal profession, their analyses involve highly jurisprudential discussions. Hence, for general readers, many parts of their discussions are not easy to follow and fully comprehend. The aim of this paper is therefore to explain the important points of contention in this case as plainly as possible with the intention of learning lessons from the judgment and utilizing them for civil movements towards the abolishment of nuclear weapons.17
Damages Caused by the Atomic Bombings
Before assessing the arguments put forward by the plaintiffs as well as the defense of this controversial case, let us first objectively analyze the actual damages caused by the atomic bombings.18
At 8:15 am on the 6th of August, 1945, the world’s first atomic bomb was dropped on Hiroshima, and at 11:02 am on the 9th of August a second atomic bomb was dropped on Nagasaki. The bomb used on Hiroshima was a uranium type atomic bomb referred to as ‘Little Boy.’ It exploded 580 meters above the ground with a force equivalent to 12.5 kilotons of TNT. The bomb used on Nagasaki was a plutonium type atomic bomb known as ‘Fat Man’. It exploded 503 meters above the ground with a force equivalent to 22 kilotons of TNT. Of the total amount of energy that rained down to the ground, 35% was heat rays, 50% was the blast and the remaining 15% was radiation. The effects of these three elements of the bomb can be summarized respectively as follows:
(1) Heat rays: Estimates suggest that after the atomic bomb was detonated, powerful heat rays were released for a period of approximately 0.2 to 0.3 seconds, heating the ground to temperatures ranging from 3,000 to 4,000ºC. These heat rays burnt people near the hypocenter to ashes and melted bricks and rocks. It is said that people suffered burns up to 3.5 kilometers from the hypocenter in Hiroshima and up to 4 kilometers in Nagasaki. In addition, the heat rays burnt buildings, triggered large-scale fires and ignited an enormous firestorm.
(2) The Blast: The blast from the atomic bomb completely destroyed all surrounding structures in an area of 4.7 square miles by US estimate. In the areas surrounding the hypocenter, people were slammed into walls and crushed to death by collapsing houses. Injuries were sustained from flying glass and other debris even in areas a long distance from the hypocenter.
(3) Radiation: The most characteristic devastating feature of the atomic bomb was radiation. Of the total energy released by the explosion, 5% was comprised of initial radiation and 10% of residual radiation. The initial radiation was caused by the nuclear fission of uranium or plutonium. Gamma and neutron rays emitted at this time penetrated people on the ground. Neutron rays caused soil and above ground structures to become radioactive. Fission products were picked up and carried in the atmosphere by upward wind currents turning into ‘Black Soot’ and when in the atmosphere tiny particles became moist and fell to the ground in the form of ‘Black Rain.’ These radioactive particles caused both internal and external damage. Many of those killed in the months following the bomb displayed acute symptoms such as hair loss, diarrhea, purpuric skin lesions, bleeding gums and fever. Cancer, leukemia and various other after-effects also became apparent.
The compound effects of the heat rays, blast and radiation had a far greater effect than any of these would have had individually. Heat rays caused the outbreak of fires. Blast destroyed buildings causing secondary fires and the ensuing firestorm created upward wind currents that spread radioactive matter on the ground and through the atmosphere. Exposure to radiation seriously damaged the health and eventually took the lives of many people.
The atomic bomb wiped out the lives of many people in an instant. The victims of the bombs were not only Japanese nationals, but also many Koreans and Chinese who were working in Japan as well as some prisoners of war from the Allied forces captured by the Japanese military. Tens of thousands of others died soon after the bombs were dropped through lack of medical supplies. By the end of 1945, an estimated 140,000 people had died in Hiroshima and 70,000 in Nagasaki. Since 1945, countless more have died as a result of various after-effects. Many of those who experienced this ‘hell on earth’ also suffered serious psychological damage.
Radiation from the atomic bombs damaged genes, which later became a cause of cancer and left various other physical impediments that scientists still do not fully understand. Today, over 64 years after the end of the war, new after-effects are still appearing and the survivors live in constant fear. It is further thought that damage to health, particularly from radiation, has in some cases been passed on to children and grandchildren. Disfigurement also brought about many forms of anguish and discrimination. Marriage and employment became difficult and life became cut off from the healthy society. The atomic bombings made it impossible for many surviving hibakusha to live normal lives.
The Argument of the Plaintiffs
The following is the summary of the argument in the complaint filed by the plaintiffs:
‘The plaintiffs, Japanese nationals, were all residents either in Hiroshima or Nagasaki when atomic bombs were dropped on these cities by bombers of the United States [Army] Air Force in August 1945. Most of the members of their families were killed and many, including some of the plaintiffs themselves, were seriously wounded as a result of these bombings. The plaintiffs jointly brought the present action against the defendant, the State (of Japan), for damages on the following grounds: (a) that they suffered injury through the dropping of atomic bombs by members of the [Army] Air Force of the United States of America; (b) that the dropping of these atomic bombs as an act of hostility was illegal under the rules of positive international law then in force (taking both treaty law and customary law into consideration), for which the plaintiffs had a claim for damages; (c) that the dropping of atomic bombs also constituted a wrongful act under municipal law, ascribable to the United States and its President, Mr. Harry Truman: (d) that Japan had waived, by virtue of the provisions of Article 19 (a) of the Treaty of Peace with Japan of 1951, the claims of the plaintiffs under international law and municipal law, with the result that the plaintiffs had lost their claims for damages against the United States and its President; and (e) that this waiver of the plaintiffs’ claims by the defendant, the State, gave rise to an obligation on the part of the defendant to pay damages to the plaintiffs.’19
Let us examine this argument in more detail.20
The plaintiffs argued that the effects of heat rays, blast and radiation from the atomic bomb extended over 4 kilometers from the epicenter, which inevitably caused indiscriminate mass killing of the people in Hiroshima and Nagasaki. They claimed that the use of the atomic bomb was a clear breach of Article 23 (a) of the regulations of the Law and Customs of War on Land annexed to the Hague Convention IV on October 18, 1907, which states that it is specially forbidden