The Asia-Pacific Journal | Japan Focus Volume 7 | Issue 44 | Number 3 | Article ID 3245 | Nov 02, 2009

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The Atomic Bombing, The Tokyo War Crimes Tribunal and theShimoda Case: Lessons for Anti-Nuclear Legal Movements

Yuki Tanaka, Richard Falk

The Atomic Bombing, The TokyoWar Crimes Tribunal and theShimoda Case: Lessons for Anti-Nuclear Legal Movements

原子爆弾、東京裁判、下田判決ーー反核法律運動への教訓

Yuki Tanaka and Richard Falk

Yuki Tanaka’s article is followed by acompanion article by Richard Falk

The War Crimes Trials and the Issueof Indiscriminate Bombing

On May 14, 1946, ten days after the opening ofthe International Military Tribunal for the FarEast (popularly known as the Tokyo WarCrimes Tribunal), Captain George Furness, amember of the defense counsel, cast seriousdoubt on the fairness of the Tribunal conductedby the victorious nations in World War II:

‘We say that regardless of theknown integrity of the individualMembers of this Tribunal theycannot, under the circumstances oftheir appointment, be impartial;that under such circumstances thistrial, both in the present day andhistory, will never be free fromsubstantial doubt as to its legality,fairness, and impartiality.’1

For this reason Captain Furness urged that thetrial be conducted “by representatives ofneutral nations free from the heat and hatredof war.”2

After Furness’ presentation, Major Ben BruceBlakeney, another American member of thedefense counsel, turned to the issue of “CrimesAgainst Peace,” and argued that such crimes“do not constitute charges of any offenseknown to or defined by any law.”3 He reasonedthat war, and even waging a war of aggression,is not a crime, and cannot be defined as just orunjust. 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 bythe Tribunal as beyond its jurisdiction toentertain.’4

The International Military Tribunal for theFar East in session

Blakeney then argued that war is the act of anation, not of individuals, so that killing in warcannot be charged as murder. In order to

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emphasize his point, he took the bold step ofaddressing the extremely sensitive issue of theatomic bombing of Hiroshima:

‘If the killing of Admiral Kidd bythe bombing of Pearl Harbor ismurder, we know the name of thevery man who[se] hands loosed theatomic bomb on Hiroshima, weknow the chief of staf f whoplanned the act, we know the chiefof the responsible state. Is murderon their consciences? We may welldoubt it. We may well doubt it, andnot because the event of armedconflict has declared their causejust and their enemies unjust, butbecause the act is not murder.Show us the charge, produce theproof of the killing contrary to thelaws and customs of war, name theman whose hand dealt the blow,produce the responsible superiorwho planned, ordered, permittedor acquiesced in this act, and youhave brought a criminal to the barof justice.’5

Thus he impl ied that i f the ki l l ing ofcombatants of the U.S. forces by Japaneseforces during the Pearl Harbor attack wasregarded as “murder,” by the same token theU.S. President, Harry S. Truman, and the U.S.Army Chief of Staff, George C. Marshall, i.e.,two of the American leaders ultimatelyresponsible for the atomic bombing ofHiroshima, could be accused of “murder” aswell. In order to invalidate the new legaldefinition of “Crimes Against Peace,” hedirectly challenged the dominant popularAmerican idea at the time that the atomicbombing of Hiroshima and Nagasaki was arightful act of revenge for the surprise attackon Pearl Harbor. In fact Blakeney wasconvinced that the atomic bombing of Japanesecitizens was clearly a violation of the Hague

Convention IV, the Laws and Customs of Waron Land. He clearly pointed this out in court onMarch 3, 1947. However, the evidence thedefense counsel asked the court to examine inassessing the atomic bombing was rejected bya majority decision by the judges, anddel iberat ion on this issue was neverconducted. 6

At the Tokyo War Crimes Tribunal, the issue ofthe indiscriminate bombing of many Chinesecities by Japanese Imperial Forces during theAsia Pacific War was never raised, despiterepeated wartime condemnation by the USgovernment of Japan’s aerial attacks onChinese civilians. It is obvious that the reasonfor not bringing this matter before the court layin America’s own conduct against Japanesecivilians, which took the form of the mostextensive aerial campaign against civilians,destroying sixty four Japanese cities withincendiary bombs and two with atomic bombs.The fact that the Nazis’ indiscriminate bombingof various cities in Europe and England wasnever a topic of criminal investigation atNuremberg was probably due to the samereason.

In the end, Judge Pal from India, was the onlyperson, among eleven judges who presidedover the Tokyo War Crimes Tribunal, who madea critical comment on the atomic bombing,albeit briefly. In his dissenting judgment, hewrote:

‘It would be sufficient for mypresent purpose to say that if anyindiscriminate destruction ofcivilian life and property is stillillegitimate in warfare, then, in thePacific war, this decision to use theatom bomb is the only nearapproach to the directives ofGerman Emperor during the firstworld war and of the Nazi leadersduring the second world war.Nothing like this could be traced to

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the credit of the present accused.’7

Interestingly, there was one exception at a Bclass trial conducted in Yokohama, in which theindiscriminate bombing of Japanese cities byAmerican forces became the focus of a heateddiscussion in court. This was at the trial ofGeneral Okada Tasuku, who issued orders toexecute several crew members of B-29bombers, who had been captured by theJapanese after being shot down near Nagoyacity, without conducting proper court-martialtrials. Dr. Joseph Featherstone, an Americanlawyer acting as chief defense counsel forGeneral Okada, argued that, because theAmerican B-29 crews were engaged in unlawfulindiscriminate bombings which killed andwounded many Japanese civilians, they werecriminals rather than POWs. Featherstoneclaimed that the execution of those Americanswas therefore legitimate. Although the courtfound General Okada guilty and sentenced himto death, it seems that Featherstone’sargument and the evidence he presented to thecourt had considerable influence on therelatively lenient judgments handed down toOkada’s subordinates who had carried outOkada’s orders. A number of American judgesand prosecutors sent petitions to GeneralMacArthur, requesting that he commute thedeath sentence to life imprisonment, howevertheir appeals failed to change MacArthur’sdecision.8

Okamoto’s Struggle for Justice for theVictims of the Atomic Bombings

One of the Japanese members of the defensecounsel of the Tokyo War Crimes Tribunal wasa lawyer named Okamoto Shoichi, who alsoacted as a member of the defense counsel forGeneral Okada and assisted Featherstone.Okamoto’s experience with these Americanlawyers seems to have had considerableinfluence on his thinking concerning justice forthe Japanese victims of aerial indiscriminatebombings, including the atomic bombings of

Hiroshima and Nagasaki. Okamoto pursued alegal struggle to bring justice to the A-bombsurvivors long after the conclusion of the TokyoWar Crimes Tribunal. In February 1953,Okamoto sent a copy of a booklet he had madeto 64 lawyers in Hiroshima and Nagasaki. In“Genbaku Minso Wakumon (Questions andAnswers on the Civil Lawsuit over the AtomicBombings),” he requested the assistance andcooperation of his colleagues in Hiroshima andNagasaki in order to file an action against theU.S. government over the atomic bombings ofthese two cities. The introduction explainedhow he came to entertain this idea.

‘I was a member of the defensecouncil of the InternationalMilitary Tribunal for the Far Eastfor over two and half years fromJune 1946. What was always in mymind during this period was howunfair it was that, due to thesimple fact that they won the war,the victor nations had never beenq u e s t i o n e d a b o u t t h e i rresponsibility for some of theira c t i o n s w h i c h v i o l a t e dinternational law. I was, however,quietly hoping that the leaders ofthe victor nations would at leastexpress remorse for the atomicbombing o f Hirosh ima andNagasaki after the peace treatyhad been concluded.

A year has already passed, yetthere is no sign of such action. It isutterly deplorable to see the U.S.and the U.K., nations in whichChristianity is the dominantreligion and humanism the base ofdemocracy, behave in this manner.

While I was working as a memberof the defense council of theIMTFE, I was already thinking ofbringing a civil suit to pursue the

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responsibility for at least theatomic bombing of Hiroshima andNagasaki after the peace treatyhad come into effect. Thus I toldmy friends that I would like to filea suit in the court of jurisdictionagainst the leaders and nationswho participated in this illegalaction.

As the peace treaty becameeffective last year, I have renewedmy decision and conducted somer e s e a r c h o n t h i s i s s u e .Consequently I now believe that itis possible to carry out this lawsuitin the U.S. and U.K., in particularin the U.S.’9

In this booklet, Okamoto explained theessential legal issues pertaining to the atomicbombing, providing his own answers to theimportant questions surrounding thiscontentious issue. It is clear from hisarguments that he wished to apply theNuremberg principle to the atomic bombing ofHiroshima and Nagasaki. His arguments can besummarized in the following four points.

1) The use of atomic bombs should be bannedin accordance with the Regulations respectingthe Law and Customs of War on Land annexedto the Hague Convention IV.2) The atomic bomb is one of the mostinhumane and brutal weapons ever created,capable of exterminating the entire humanrace. Therefore, the immunity of liableindividuals in the name of “act of state” mustnot be applied in this case. The NurembergTrial and Tokyo Trial set precedents for this.3) The liability for individual or corporatevictims can be placed with two groups: one isthat of the American individuals whoparticipated in the decision making for theatomic 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 trialis to judge the crime committed by the victornation, and to this end it requires closeassistance and cooperation from Americanlawyers with a strong sense of universaljustice.10

It is clear that Okamoto was hoping to gainsupport from American lawyers, believing thatmany American law professionals would sharethe v iews of Furness, Blakeney, andFeatherstone, who had made concerted effortsto defend accused Japanese wartime leaders byutilizing their knowledge of internationalcriminal law. However, he realized that histrust in American lawyers was misplaced whenRoger Baldwin, a well-known American pacifistand chairman of the International League forthe Rights of Man, now known as theInternational League for Human Rights,responded to Okamoto’s request in March1954. Baldwin was known in Japan as a humanrights activist, having come to the country in1947 on the invitation of General DouglasMacArthur, Supreme Commander of the AlliedPowers, to foster the growth of civil liberties inthat country. In Japan, he founded the JapanCivil Liberties Union, and later the Japanesegovernment awarded him the Order of theRising Sun for this contribution. Baldwininformed Okamoto that he was in completeopposition to Okamoto’s plan, as he believedthe case had no legal base whatsoever and thatit would be harmful for the U.S. - Japanbilateral relationship. Two months later, A.Wiling and F. Auckland, two members of theLos Angeles branch of the American CivilLiberties Union, for which Baldwin was thenational leader until 1950, contacted Okamotoand offered their assistance as attorneys forthis 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 largesum of money for the A-bomb survivors, most ofwhom were suffering from various kinds ofillness and struggling to survive without

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adequate medical and social welfare supportfrom their own government. In fact, Okamotowas conducting his work at no charge andpersonally covered all operating costs,including the product ion cost of theaforementioned booklet. 1 1

Roger Baldwin

Not only American human rights activists andlawyers but also Japanese lawyers and localpoliticians in Hiroshima and Nagasaki werereluctant to support Okamoto’s bold proposal.For example, the then mayor of Hiroshima andA-bomb survivor, Hamai Shinzo, declinedOkamoto’s request to join this scheme,claiming that it could become a mud-slingingpolitical contest with the U.S., although he saidthat he would not oppose private citizensjoining the plan to pursue the judgment of theatomic bombing in strict accordance withinternational law. Most lawyers in the twocities, including those who were A-bombsurvivors, were also unenthusiastic abouttaking legal action against the biggesteconomic and military world power. Theyregarded such action as unrealistic and successimpossible, although some doubtless sharedOkamoto’s view that indiscriminate attack oncivilians with atomic bombs clearly constituteda war crime. It was the official opinion of boththe Lawyers Association of Hiroshima and that

of Nagasaki that an international tribunalestablished upon the international treatyshould be created to deal with internationalcrimes such as the atomic bombing ofHiroshima and Nagasaki, but they recognizedthat it would be extremely difficult to instigatelegal action against the U.S. government toclaim damages, given the language of thepeace treaty concluded in 1951. Article 19 (a)of the Peace Treaty between the Allied Powersand Japan stated that ‘Japan waives all claimsof Japan and its nationals against the AlliedPowers and their nationals arising out of thewar or out of actions taken because of theexistence of a state of war, and waives allclaims arising from the presence, operations oractions of forces or authorities of any of theAllied Powers in Japanese territory prior to thecoming into force of the present Treaty.’12

The socio-political atmosphere in Japan duringthe occupation may also have deterred popularwillingness to pursue justice for the victims ofthe atomic bombings. The U.S. occupationpolicy in Japan to suppress all information onthe atomic bombings remained in effect untilApril 1952, when the Allied occupation ended.13

Because of the lack of accessible informationdue to this policy, the Japanese people at thattime knew little of the nature of the atomicbombings and their aftereffects. It was not until1954 that strong anti-nuclear sentimentsuddenly erupted and spread all over Japan asa result of an incident in which radioactive dustfrom the American hydrogen bomb test calledthe Bravo shot fell, not only on many MarshallIslanders, but famously on a Japanese tunafishing boat called the Lucky Dragon No.5,irradiating all twenty-three fishermen. CaptainKuboyama Aikichi died on September 23 in1954. Nationwide anti-nuclear sentiment led tothe creation of Gensuikyo (Japan CouncilAgainst A- and H-Bombs) in 1955, whichlaunched a powerful movement opposing U.S.use of nuclear weapons in the Korean War. Yeteven this active anti-nuclear trend did notdirectly transfer to nor invigorate support for

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Okamoto’s plan to seek legal justice forsurviving A-bomb victims. It is difficult tounderstand the general passivity towards the“legal movement” in contrast to the vigorouspopular anti-nuclear “political movement” ofthis period. It may have been due in part to theJapanese popular notion that, as a nationdefeated in war, it was necessary to accept theconsequences of defeat. In addition, many whowere deeply involved in the anti-nuclearmovement of this period were acutely aware ofJapan’s responsibility for atrocities committedagainst Asian nations, hence may have beenreluctant to support a movement to claimdamages from the atomic bombing, evendamages for victims.

Faced with the lack of support both fromAmerican and Japanese lawyers as well as fromthe public, Okamoto gave up the plan to bringthe case to the U.S. court. He decided insteadto appeal to a Japanese court. Fortunately asmall group of A-bomb survivors in Hiroshimacalled “Genbaku Higaisha no Kai (TheAssociation of A-bomb Survivors)” expressedfull support and willingness to cooperate withOkamoto. Although this small group of A-bombsurvivors later became the core of the largenation-wide A-bomb victims’ lobbyingorganization, “Nippon Gensuibaku HigaishaDantai Kyogikai (Japan Confederation of A- andH-Bomb Sufferers Organization), at that time itwas still a minor, non-political organization setup predominantly for mutual help amongsurvivors, who had little public assistance oraid to cope with their harsh living conditionsand protracted illness. Through the Associationof the A-bomb Survivors in Hiroshima andthose in Nagasaki who had contact with thisorganization, eventually five A-bomb survivorsfrom Hiroshima and Nagasaki were selected in1955 to become plaintiffs, ten years after theatomic bombings.1 4 Amongst them, thehardship experienced by Shimoda Ryuichi, athen 57-year-old man from Hiroshima, seemedto symbolically represent the lives of all the A-bomb survivors. The operator of a small, family-

based factory, he lost four daughters and oneson, aged between 4 and 16, as a result of theatomic bombing. He, his wife (40 years old atthe time of the A-bomb attack) and theiryoungest child (a two-year-old boy), survived.In 1955 he had keloid burns all over his bodycaused by the bombing and suffered from liverand kidney disorder. Due to these healthproblems, he was unable to work, and both hiswife and child suffered from persistent fatigue,headache and listlessness, i.e., the so-called “A-bomb disease,” a typical symptom of irradiatedsurvivors. They were living in poverty, relyingupon a small amount of money sent to them byhis sister once a month.15

A 33-year-old lawyer born in Mihara City ofHiroshima Prefecture, Matsui Yasuhiro, joinedOkamoto’s struggle to bring justice to the A-bomb survivors. Matsui had entered KansaiUniversity Law School in Osaka in 1941, butwas sent to China as a young army traineepaymaster in December 1943 beforecompleting his study. He lost many relatives inthe atomic bombing. His brother and an unclewere A-bomb survivors. After the war heentered and graduated from the Law School ofWaseda University, beginning work as a lawyerin Tokyo in 1949. Okamoto, who was based inOsaka, often came up to Tokyo to discuss withMatsui important issues surrounding their caseand to examine the opinions of variousinternational law scholars. Together theyprepared a complaint, and in April 1955,appealed to the District Court of Tokyo.16

There have been only a few scholarly analysesof this so-called Shimoda case both in Japanand the United States. Amongst them are thework of Professor Richard Falk, ‘The ShimodaCase: A Legal Appraisal of the Atomic Attackson Hiroshima and Nagasaki,’ published in theAmerican Journal of International Law in 1965,and a Japanese article written by ProfessorFujita Hisakazu, entitled ‘Genbaku Hanketsu noKokusaihoteki Saikento (A Re-examination ofthe Judgment of the A-bomb Trial),’ published

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in the Law School Journal of Kansai Universityin 1975. As both articles were writtenspecifically for readers in legal profession, theiranalyses involve highly jurisprudentialdiscussions. Hence, for general readers, manyparts of their discussions are not easy to followand fully comprehend. The aim of this paper istherefore to explain the important points ofcontention in this case as plainly as possiblewith the intention of learning lessons from thejudgment and uti l iz ing them for civi lmovements towards the abolishment of nuclearweapons.17

Damages Caused by the Atomic Bombings

Before assessing the arguments put forward bythe plaintiffs as well as the defense of thiscontroversial case, let us first objectivelyanalyze the actual damages caused by theatomic bombings.18

At 8:15 am on the 6th of August, 1945, theworld’s first atomic bomb was dropped onHiroshima, and at 11:02 am on the 9th ofAugust a second atomic bomb was dropped onNagasaki. The bomb used on Hiroshima was auranium type atomic bomb referred to as ‘LittleBoy.’ It exploded 580 meters above the groundwith a force equivalent to 12.5 kilotons of TNT.The bomb used on Nagasaki was a plutoniumtype atomic bomb known as ‘Fat Man’. Itexploded 503 meters above the ground with aforce equivalent to 22 kilotons of TNT. Of thetotal amount of energy that rained down to theground, 35% was heat rays, 50% was the blastand the remaining 15% was radiation. Theeffects of these three elements of the bomb canbe summarized respectively as follows:

(1) Heat rays: Estimates suggest that after theatomic bomb was detonated, powerful heatr a y s w e r e r e l e a s e d f o r a p e r i o d o fapproximately 0.2 to 0.3 seconds, heating theground to temperatures ranging from 3,000 to4,000ºC. These heat rays burnt people near thehypocenter to ashes and melted bricks androcks. It is said that people suffered burns up

to 3.5 kilometers from the hypocenter inHiroshima and up to 4 kilometers in Nagasaki.In addition, the heat rays burnt buildings,triggered large-scale fires and ignited anenormous firestorm.

(2) The Blast: The blast from the atomic bombcompletely destroyed all surroundingstructures in an area of 4.7 square miles by USestimate. In the areas surrounding thehypocenter, people were slammed into wallsand crushed to death by collapsing houses.Injuries were sustained from flying glass andother debris even in areas a long distance fromthe hypocenter.

(3) Radiation: The most characteristicdevastating feature of the atomic bomb wasradiation. Of the total energy released by theexplosion, 5% was comprised of initial radiationand 10% of residual radiation. The initialradiation was caused by the nuclear fission ofuranium or plutonium. Gamma and neutronrays emitted at this time penetrated people onthe ground. Neutron rays caused soil and aboveground structures to become radioactive.Fission products were picked up and carried inthe atmosphere by upward wind currentsturning into ‘Black Soot’ and when in theatmosphere tiny particles became moist andfell to the ground in the form of ‘Black Rain.’These radioactive particles caused bothinternal and external damage. Many of thosekilled in the months following the bombdisplayed acute symptoms such as hair loss,diarrhea, purpuric skin lesions, bleeding gumsand fever. Cancer, leukemia and various otherafter-effects also became apparent.

The compound effects of the heat rays, blastand radiation had a far greater effect than anyof these would have had individually. Heat rayscaused the outbreak of fires. Blast destroyedbuildings causing secondary fires and theensuing firestorm created upward windcurrents that spread radioactive matter on theground and through the atmosphere. Exposure

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to radiation seriously damaged the health andeventually took the lives of many people.

The atomic bomb wiped out the lives of manypeople in an instant. The victims of the bombswere not only Japanese nationals, but alsomany Koreans and Chinese who were workingin Japan as well as some prisoners of war fromthe Allied forces captured by the Japanesemilitary. Tens of thousands of others died soonafter the bombs were dropped through lack ofmedical supplies. By the end of 1945, anestimated 140,000 people had died inHiroshima and 70,000 in Nagasaki. Since 1945,countless more have died as a result of variousafter-effects. Many of those who experiencedthis ‘hell on earth’ also suffered seriouspsychological damage.

Radiation from the atomic bombs damagedgenes, which later became a cause of cancerand left various other physical impedimentsthat scientists still do not fully understand.Today, over 64 years after the end of the war,new after-effects are still appearing and thesurvivors live in constant fear. It is furtherthought that damage to health, particularlyfrom radiation, has in some cases been passedon t o ch i l d ren and g randch i l d ren .Disfigurement also brought about many formsof anguish and discrimination. Marriage andemployment became difficult and life becamecut off from the healthy society. The atomicbombings made it impossible for manysurviving hibakusha to live normal lives.

The Argument of the Plaintiffs

The following is the summary of the argumentin the complaint filed by the plaintiffs:

‘The plaintiffs, Japanese nationals,were al l residents either inHiroshima or Nagasaki whenatomic bombs were dropped onthese cities by bombers of theUnited States [Army] Air Force in

August 1945. Most of the membersof their families were killed andmany, including some of theplaintiffs themselves, wereseriously wounded as a result ofthese bombings. The plaintiffsjointly brought the present actionagainst the defendant, the State (ofJapan) , for damages on thefollowing grounds: (a) that theysuffered injury through thedropping of atomic bombs bymembers of the [Army] Air Forceof the United States of America;(b) that the dropping of theseatomic bombs as an act of hostilitywas illegal under the rules ofpositive international law then inforce (taking both treaty law andcustomary law into consideration),for which the plaintiffs had a claimfor damages; (c) that the droppingof atomic bombs also constituted awrongful act under municipal law,ascribable to the United States andits President, Mr. Harry Truman:(d) that Japan had waived, byvirtue of the provisions of Article19 (a) of the Treaty of Peace withJapan of 1951, the claims of theplaintiffs under international lawand municipal law, with the resultthat the plaintiffs had lost theirclaims for damages against theUnited States and its President;and (e) that this waiver of theplaintiffs’ claims by the defendant,t h e S t a t e , g a v e r i s e t o a nobligation on the part of thedefendant to pay damages to theplaintiffs.’19

Let us examine this argument in more detail.20

The plaintiffs argued that the effects of heatrays, blast and radiation from the atomic bomb

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extended over 4 kilometers from the epicenter,which inevitably caused indiscriminate masskill ing of the people in Hiroshima andNagasaki. They claimed that the use of theatomic bomb was a clear breach of Article 23(a) of the regulations of the Law and Customsof War on Land annexed to the HagueConvention IV on October 18, 1907, whichstates that it is specially forbidden ‘to employpoison or poisonous weapons,’ and ‘to employarms, projectiles, or material calculated tocause unnecessary suffering.’ They claimedthat it was also a breach of the Geneva Protocolof June 17, 1925, which prohibits ‘the use inwar of asphyxiating, poisonous or other gasesand all materials or devices.’ Given the factthat the effects of the atomic bomb were farmore devastating than poisonous gases, theyargued that the use of an atomic weapon wascontrary to the fundamental principle of thelaws of war that unnecessary pain must not beinflicted.

Concerning the indiscriminate nature of theatomic bomb attacks, the plaintiffs contendedthat it was a crime as defined by Article 25 ofthe regulations of the Law and Customs of Waron Land of 1899, which states that ‘the attackor bombardment, by whatever means, of towns,villages, dwellings, or buildings which areundefended is prohibited.’ They also claimedthat Articles 22 and 24 of the Draft Rules of AirWarfare of 1923 prohibit the indiscriminateaerial bombing of non-combatants. Article 24allows only the aerial bombings of militarytargets such as military forces, military works,military establishments or depots, and factoriesengaged in the manufacture of arms,ammunitions, or distinctively military supplies.Article 22 states that ‘aerial bombardment forthe purpose of terrorizing the civilianpopulation, of destroying or damaging privateproperty not of military character, or ofinjuring non-combatants, is prohibited.’ Theyargued that, although the Draft Rules of AirWarfare was not positive law at the time theatomic bombings were carried out, it was

regarded as authoritative customary law byinternational jurists.

The plaintiffs alleged that President Truman,the supreme commander of the U.S. Forces,must have been well aware of the above-mentioned international treaty and customarylaws. They also asserted that Truman musthave had full knowledge, from the report of thetest conducted a few weeks before orderingtheir use against Japan, how powerful anddestructive the atomic bombs would be. Theplaintiffs argued that one could have easilypredicted that atomic bombs could annihilatethe entire human race because of theirimmense destruct iveness and the irextraordinarily harmful effects on humanbodies, so that the use of the atomic weaponwas clearly prohibited by “natural law” or the“principle of international law” even if thepositive laws could not have been applied to it.It was argued that atomic bombing is an act ofmassacre and thus cannot be seen as a plainmilitary action, and that Truman and other warleaders of the U.S. who participated in thedecision-making process of the atomicbombings of Hiroshima and Nagasaki, knowingthat they would result in indiscriminate masskillings, clearly committed war crimes.Consequently, the plaintiffs contended thatPresident Truman and other U.S. leaders wereliable for compensating the damage caused bythis deliberate act of inhumanity. It was theiropinion that the sovereign immunity doctrinemust not be applied to this case due to the factthat the atomic bombs were not used simply forthe purpose of destroying the fighting power ofthe enemy nation but with the clear intention toindiscriminatingly kill large numbers ofresidents.

Finally, the plaintiffs argued that the Japanesegovernment had violated their constitutionaland vested rights by agreeing to the waiverprovision of the Peace Treaty with the U.S.government (concluded in September 1951 andeffective from April 1952) and was therefore

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legally responsible for satisfying the claimswrongfully waived. They also asserted that ifthe Japanese government had no choice but torenounce the plaintiffs’ claims for damages inorder to conclude the Peace Treaty with theU.S., this action meant that the Japanesegovernment surrendered these claims for thebenefit of the nation. Hence, the Japanesegovernment was accordingly responsible, theplaintiffs claimed, to properly compensate themin accordance wi th Art ic le 29 (3) o fConstitution.

The Argument of the Defense

Of course the defense conceded the fact of theatomic bombing of Hiroshima and Nagasaki,but it claimed that the Japanese governmentdid not know whether the damage caused bythese bombings was exactly as the plaintiffsclaimed, and that it did not know the extent ofthe power of the atomic bomb. In fact, thecasualty figures that the defense submitted tothe court were considerably lower than whatthe plaintiffs claimed.21

The Japanese government contended that, asthe use of atomic weapons was not expresslyprohibited by international law, the question ofa violation of international law did not arisewhen the bombs were dropped. Furthermore,the defense argued that ‘From the viewpoint ofinternational law, war is originally thecondition in which a country is allowed toexercise all means deemed necessary to causethe enemy to surrender,’ and that ‘Since theMiddle Ages, belligerents have been permittedto choose the means of injuring the enemy inorder to attain the special purpose of war,subject to certain conditions imposed byinternational customary law and treatiesadapted to the times.’ In other words, thedefense implied that any weapon could beutilized no matter how destructive, lethal andinhumane it would be, as long as there was nopositive law or treaty to explicitly prohibit theuse of such a weapon. It is truly surprising to

hear such a defense of the use of the atomicbomb, expressed by the government of thenation which fell victim to the world’s firstnuclear attacks and, as a result, established aConstitution explicitly adopting the principle ofpeace and non-violence.

In fact, since its surrender on August 15th1945, the Japanese government has neverlodged an official protest with the U.S.government concerning the atomic bombing ofHiroshima and Nagasaki, or, for that matter,the firebombing of more than one hundredJapanese cities and towns. The first and lastofficial protest that the Japanese governmentmade came immediately after the bombing ofNagasaki on August 9th, when the Japanesegovernment sent a protest note to the U.S.government through the Swiss governmentunder the name of then Minster of ForeignAffairs, Togo Shigenori.

In this protest note, the Japanese governmentclearly stated that ‘it is the fundamentalprinciple of international law in war time thatbelligerents do not possess unlimited rightsregarding the choice of the means of harmingthe enemy, and that we must not employ arms,projectiles, or material calculated to causeunnecessary suffering. They are each clearlydefined by the Annex to the Hague Conventionrespecting the Law and Customs of War onLand, and by Article 22 and Article 23 (e) of theRegulations respecting the Law and Customs ofWar on Land.’ Furthermore, this note severelycondemned the U.S., claiming that:

‘The indiscriminateness andcruelty of the bomb that the U.S.used this time far exceed those ofpoisonous gases and similarweapons, the use of which isprohibited because of these veryqualities. The U.S. has ignored thef u n d a m e n t a l p r i n c i p l e o finternational law and humanityand has been widely conducting

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the indiscriminate bombing of thecities of our Empire, killing manychildren, women and old people,and burning and destroyingshrines, schools, hospitals andprivate dwellings. Withal, theyused a novel bomb, the power ofwhich exceeds any exist ingweapons and projectiles in itsindiscriminateness and cruelty.The use of such a weapon is a newcrime against human culture.’22

There is no doubt that this note was drafted bya person knowledgeable in international law,indeed the Japanese government’s legalinterpretation of the atomic bombing at thattime was almost identical to that the plaintiffsof the Shimoda case put forward. It is thereforenot at all surprising that the plaintiffs pointedto this fact in the courtroom and criticized theopportunistic change in the defense’sargument. The defense stated however, that‘taking an objective view, apart from theposition of a belligerent, and having consideredthe fact that the use of an atomic weapon is notyet regarded as illegal in accordance withinternational law, we reached the conclusionthat it is not possible to hastily define it illegal.’It is ironic that, from the view point of legallogic, the argument that the Japanesegovernment advanced in the above mentionedprotest note of August 1945 sounds far more“objective” and rational than that presented tothe court by the defense twenty years later.

Regarding the plaintiffs’ claims for damages,the defense argued that because the atomicbombing is not a violation of international law,claims for damages are baseless. The claims fordamages could become reality, the defenseasserted, only if the nations in negotiationrecognize them in a peace treaty. Therefore,the defense held, a legal right to damages issimply an abstract concept unless it is officiallyacknowledged in a peace treaty. To further

confirm this argument, the defense assertedthat no defeated nation has ever claimeddamages for its nationals against a victoriousnation. On the issue of the waiver, the defensestated that only the claims of Japan as a statewere waived by Article 19(a) of the PeaceTreaty, and therefore the plaintiffs’ claims fordamages are irrelevant to the waiver provisionof the treaty even if they could exist. TheJapanese government further argued that, evenif the waiver in Article 19(a) was construed as aviolation of Article 29 of the JapaneseConstitution, there would be no basis forrecovery for damages as the Constitution ‘doesnot directly grant the people a concrete claimfor compensation.’ According to its argument,the purpose of Article 29 of the JapaneseConstitution is to establish a law by which thepeople are entitled to be compensated in thecase that the state uses or expropriates theirprivate properties for the public good. Thus,the defense asserted that it is only when such alaw is enacted that the people are able to claimfor compensation.

Overall, the basic argument advanced by theJapanese government is that a defeated nationhas no right to condemn the wrong doingscommitted by a victorious nation, and that thecitizens of the defeated nation must accept thisas their unchangeable fate no matter how badlythey are victimized. In other words, theJapanese government forced its citizens toaccept that the law of the jungle applies: theweak (the defeated) are obliged to endure anyinjustice imposed by the powerful (the victor).This thinking clearly reflects the Japanesegovernment policy issued immediately after thewar – “Ichioku So Zange (collective repentanceby the entire Japanese population for defeat inwar),” – in which the government demandedthat the Japanese people blame themselves forthe misery caused by the war, and not condemnEmperor Hirohito or other war leaders. Thereal issue of “responsibility” for the war wasthus blurred as it entailed no process of self-criticism of wrongdoing at the highest levels of

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power.

In court, the Japanese government tried to usethe same non-legal argument that the U.S.government invented shortly after the war inorder to justify the mass killing of Japanesecivilians through the atomic bombing ofHiroshima and Nagasaki. This argument heldthat it was necessary to use atomic weaponsagainst Japan in order to end the war, and thatif the war had continued, millions more people—Japanese, Americans, Asians of many nations— would have died. We must be careful not tointermingle non-legal and legal arguments. Ajustification predicated on utility has nothing todo with the question of the legality of the use ofatomic bombs. It must be emphasized that thecriminality of a particular act defined by lawcannot be justified by any non-legal argumentwhich defends the conduct itself.

The U.S. government has persistently used thisnon-legal self-justification since the end of thePacific War to defend the use of the atomicbombs. However, as conclusively demonstratedin the scholarly literature, the atomic bombingof Hiroshima and Nagasaki was not decisive inending the war. Its political justification was amyth created by the American government andtacitly endorsed by the Japanese governmentfor self-serving reasons. This explanation leavesopen why the Japanese government did notconcede to the Allies immediately after theatomic bombing of Hiroshima and Nagasaki.On 10 August 1945 - the day after the bombingof Nagasaki - the cities of Kumamoto andMiyazaki in Kyushu Prefecture and Sakata inYamagata Prefecture were bombed. Two dayslater, Kurume, Saga and Matsuyama weretargeted, and on 13 August Nagano,Matsumoto, Ueda and Otuki were bombed. On14 August, in addition to a massive attack onOsaka with 700 heavy one-ton bombs droppedfrom 150 B-29 bombers, Akita, Takasaki,Kumagaya, Odawara and Iwakuni became thevictims of the last U.S. bombing raids of theAsia Pacific War. The plain fact is that the

massive destruction of Japanese cities, from theTokyo raids of March 9-10 to those of August14 failed to break the will of Japan’s leaders.23

Other political and strategic factors, notablythe Soviet entry into the war and the invasionof Russian forces into Manchuria, as well as theUS easing of the Potsdam surrender terms toprotect the emperor played vital roles inbringing Japan’s final surrender.24

Osaka in the aftermath of bombing

Yet, even if the myth that the atomic bombinghad ended the war were historically accurate,no historical or political justification canlegitimate the criminality of the massindiscriminate killing of civilians. We must becareful to ensure that the criminality of theatomic bombing of Hiroshima and Nagasaki notbe blurred by historical or political argumentsjustifying such criminal conduct. In otherwords, the issue of criminality must not beevaded by any political or historical assessmentof the event.

For 15 long years, Japan embarked on a war ofaggression in Asia and long after it becameclear that defeat was inevitable, Japan refusedto surrender. In my view, therefore, the thenJapanese Government and its leader, EmperorHirohito, share together with the USauthorities, part of the responsibility—bothlegal and moral responsibility—to the A-bomb

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victims for the disaster caused by the atomicbombing of Hiroshima and Nagasaki. Forcedlaborers sent from Japanese colonies such asKorea and Taiwan, and people from occupiedChina and South East Asia also became victims.The Japanese Government bears at least adegree of moral responsibility to these peopletoo, if not legal responsibility.

Lessons from the Judgment

It took eight and half years to complete thecourt case, in December 1963. During thistime, the chief judge changed five times andOkamoto Shoichi died of a stroke in April 1958without seeing the result of his efforts.25 Thefinal judgment was delivered by chief judgeKoseki Toshimasa together with two othersupporting judges, Mibuchi Yoshiko andTakakuwa Akira.26

On the issue of legality, the judgment clearlystated that the atomic bombing of Hiroshimaand Nagasaki was a clear violation ofinternational law and regulations respectingaerial warfare. The court cited a number ofinternational laws including the ConventionRespecting the Laws and Customs of War andLand of 1899, Declaration prohibiting aerialbombardment of 1907, the Hague Draft Rulesof Air Warfare of 1922-1923, and Protocolprohibiting the use in war of asphyxiating,deleterious or other gases and bacteriologicalmethods of warfare. It also said that ‘theprohibition in this case is understood to includenot only the case where there is an expressprovision, but also the case where it isnecessarily regarded that the use of newweapons is prohibited, from the interpretationand analogical application of exit inginternat iona l laws and regula t ions(international customary laws and treaties).’Thus the court dismissed the defense claim thatsince the use of atomic weapons was notexpressly prohibited by either international lawor international customary law, the question ofa legal violation did not arise when the bombs

were dropped. Thus the court found that ‘anaerial bombardment using an atomic bomb onboth the cities of Hiroshima and Nagasaki wasan illegal act of hostility as the indiscriminateaerial bombardment on undefended cities.’ Itfurther stated that: ‘It is a deeply sorrowfulreality that the atomic bombing on both thecities of Hiroshima and Nagasaki took the livesof many civilians, and that among the survivorsthere are people whose lives are still imperiledowing to the radial rays, even today 18 yearslater. In this sense, it is not too much to saythat the pain brought by the atomic bombs ismore severe than from poison-gas, and we cansay that the act of dropping such a cruel bombis contrary to the fundamental principle of thelaws of war that unnecessary pain must not beinflicted.’

Regarding the individual responsibility of U.S.President Harry Truman and other Americanwar leaders, the court adopted the traditionalsovereign immunity doctrine, claiming that:‘compensation for damage cannot be claimed ininternational law against U.S. PresidentTruman, who ordered the atomic bombing. It isa principle of international law that the Statemust directly assume responsibility for actstaken by a person as a state organ, and that theperson who holds the position as a state organdoes not assume responsibi l i ty as anindividual.’ It must be noted that this ruling is aclear contravention of the Nurembergprinciple, under which the individualresponsibility of many German and Japanesewar leaders was relentlessly examined, andmany were tried and found guilty, and someexecuted. Among them was General TojoHideki, who held the position of PrimeMinister, i.e., “the position as a state organ,”for many years during the Asia Pacific War. IfPresident Truman was not responsible forkilling and injuring tens of thousands ofJapanese civilians with atomic bombs simplybecause he was the U.S. President at the timehe ordered that the bombs be dropped, by thesame token General Tojo, then Prime Minister

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of Japan, should have been exonerated ofresponsibility for ordering his troops to attackPearl Harbor, Manila, Singapore, and othercities during the Asia-Pacific War. In otherwords, Tojo should not have been prosecutedand executed because of his “crime againstpeace.” It seems that the three judges whodelivered the judgment on the Shimoda casedid not carefully study the ruling of the TokyoWar Crimes Tribunal, although they appearedto have done considerable research on positiveinternational laws, treaties and customary lawsregarding the conduct of war. Consequently,Japan missed the opportunity to apply theNuremberg principle to one of the most horrificcrimes against humanity in the history ofmankind, a principle which was established atthe sacrifice of millions of lives of civilians andsoldiers in the war.

As far as the judgment on the issues of thewaiver in Article 19(a) of the Peace Treaty andthe plaintiffs’ claim for compensation areconcerned, the court’s explanation for itsdecision seems extremely far-fetched. Thecourt supported the argument of the Japanesegovernment and ruled that individuals had norights under international law unlessspecifically recognized in a treaty, thus therewas no general way open for individuals toclaim damages directly under international law.However, it admitted that Japan did waive allits claims, stating that: ‘It is clear that the“claims of Japan” which were waived by thisprovision includes all claims which Japan had inaccordance with treaties and internationalcustomary laws. Accordingly, claims forcompensation for damages caused to Japan byillegal acts of hostility, for example, arenecessarily included.’

The most convoluted aspect of the court’sdecision comes from the judges’ statement thatthe claims of Japanese nationals waived in thePeace Treaty were claims valid under themunicipal laws of Japan and under those of theAllied Powers and not claims in international

law. Moreover, although it is not very clearlyelucidated, the judgment seems to state that,because of the existence of sovereign immunityin the U.S., the plaintiffs had no right to claimdamages against the Allied Powers either underJapanese municipal laws or under those of theAllied Powers. In other words, the courtclaimed that from the beginning, the plaintiffs’claim for damages simply did not exist, andtherefore ‘it follows that the plaintiffs had norights to lose, and accordingly there istherefore no reason for asserting thedefendant’s legal responsibility.’ This seemsdubious as a legal argument, but because ofthis ruling the plaintiffs’ claims for damageswere dismissed. As I have already discussed,however, the reasoning behind this rulingbecomes invalid when the concept of sovereignimmunity is nullified.

In conclusion, it can be said that the atomicbomb survivors won a partial victory in thiscase, as it was acknowledged that they werevictims of unlawful indiscriminate bombingconducted by the Americans. However, itseems that the judgment in this case had littleimpact on e i ther the US or Japanesegovernments. Indeed, there is a general lack ofawareness in both Japan and the U.S. of thisJapanese legal case in which the atomicbombings were the main issue of contention, letalone the fact that the atomic bombings weredeclared a violation of international laws.Knowledge of the case should be disseminatedwidely and used in the service of anti-nuclearactions all over the world, particularly in theU.S. It should also be fully utilized, byovercoming the defects and emphasizingpositive aspects of the ruling, to establish anuclear weapons convention to abolish allnuclear weapons as soon as possible.

Yuki Tanaka is Research Professor, HiroshimaPeace Institute, and author a coordinator ofThe Asia-Pacific Journal. He is the author most

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recently of Yuki Tanaka and Marilyn Young,eds., Bombing Civilians: A Twentieth CenturyH i s t o r y(http://www.amazon.com/dp/1595583637/?tag=theasipacjo0b-20). He wrote this article for TheAsia-Pacific Journal.

Recommended citation: Yuki Tanaka andRichard Falk, "The Atomic Bombing, The TokyoWar Crimes Tribunal and the Shimoda Case:Lessons for Anti-Nuclear Legal Movements,"The Asia-Pacific Journal, Vol. 44-3-09,November 2, 2009.

Notes

1 R. John Pritchard, The Tokyo Major WarCrimes Trial: The Records of the InternationalMilitary Tribunal for the Far East (The EdwinMellen Press, 1998) vol.2, p.200.2 Ibid., p.200.3 Ibid., p.206.4 Ibid., p.209.5 Ibid., p.212.6 R. John Pritchard, The Tokyo Major WarCrimes Trial: The Records of the InternationalMilitary Tribunal for the Far East, (The EdwinMellen Press, 1998) vol.38, pp.17,655 - 17,663.7 R.B. Pal, International Military Tribunal forthe Far East: Dissentient Judgment of Justice(1953) p.621.8 For details of this court case, see OhokaShohei, Nagai Tabi (A Long Journey) (Shincho-sha, 1982). The court’s judgement is here:Ryu ich i Sh imoda e t a l . v . The Sta te(http://en.wikisource.org/wiki/Ryuichi_Shimoda_et_al._v._The_State)In 2008, a feature film “Ashita e no yuigon(Best Wishes for Tomorrow)” was producedbased upon this documentary book. The trailerof this film is available at this website(http://www.nipponcinema.com/trailers/best_wishes_for_tomorrow/).The Stars and Stripes review, Norio Murio,“Japanese film a poetic look at WWII war

crimes trial,” can be found at this website(http://www.stripes.com/article.asp?section=140&article=53145).9 The introduction to “Genbaku MinsoWakumon (Questions and Answers on the CivilLawsuit over the Atomic Bombings)” byOkamoto Shoichi is reprinted in, MatsuiYasuhiro, Genbaku Saiban: Kakuheiki Haizetuto Hibakusha Engo no Hori (The A-Bomb Trial: Legal Principles for Abolishing NuclearWeapons and Supporting A-bomb Survivors)(Shin-Nippon Shuppan-sha, 1986) pp.16 – 19.10 Maruyama Mutsuo, ‘Genbaku Saiban noImisuru-mono (The Meaning of the A-bombTrial),’ in Nippon Senryo: Kyodo Kenkyu (TheOccupation of Japan: A Cooperative Research)ed. by Shiso no Kagaku Kenkyu-kai (TokumaShobo, 1972) p.383.11 Ibid., p.383; Matsui Yasuhiro, op.cit., pp.21 –22.12 Maruyama Mutsuo, op.cit., pp.383 – 389;Matsui Yasuhiro, op.cit., pp.20 – 21.13 For details of the U.S. censorship on theJapanese publications concerning the effectsof the Atomic bombing of Hiroshima andNagasaki, see Monica Braw, The Atomic BombSuppressed: American Censorship in OccupiedJapan (M.E. Sharpe, 1997).14 Maruyama Mutsuo, op.cit., p.383.15 The information on Shimoda’s personalbackground is included in the complaintsubmitted to the District Court of Tokyo onApril 25, 1955. The full text of the complaint isreprinted in the aforementioned book byMatsui Yasuhiro. See Matsui Yasuhiro, op.cit.,pp.24 – 36.16 Matsui Yasuhiro, op.cit., p.22. RegardingMatsui’s personal background, see MatsuiYasuhiro, Senso to Kokusai-ho: Genbaku Saibankara Rasseru Hotei e (War and InternationalLaw: From the Atomic Bomb Trial to theRussell Tribunal) (Sanseido, 1968) pp.55 – 57;and Ushiomi Toshitaka, Kitano Hirohisa, OdaShigemitsu and Toriu Chusuke eds., GendaiShiho no Kadai (The Problems of ModernJudicature) (Saegusa Shobo 1982) pp.451 –456.

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17 Richard Falk’s article was reproduced in hisbook, Legal Order in A Violent World(Princeton University Press, 1968) pp.374 –413. Fuj ita’s work on this court caseconcentrates on the discussion of the illegalityof the indiscriminate bombing and in no waydeals with the issue of the plaintiffs’ claims fordamages. Francis Boyle also discusses thecriminal i ty of the atomic bombing inconjunction with this court case in Chapter 2 ofhis book, The Criminal i ty of NuclearDeterrence: Could the U.S. War on TerrorismGo Nuclear? (Clarity Press, 2005).18 For details of the effects of the atomicbombing of Hiroshima and Nagasaki, see, forexample, The Committee for the Compilation ofMaterials on Damage Caused By the AtomicBombs in Hiroshima and Nagasaki, Hiroshimaand Nagasaki - the Physical Medical and SocialEffects of the Atomic Bombings (Hutchinson &Co. , 1981); and Lei f E. Peterson andAbrahamson Seymour, eds., Effects of IonizingRadiation: Atomic Bomb Survivors and TheirChildren:1945-1995 (Joseph Henry Press,1998).1 9 The court’s decision, including thesummaries of the complaint and the defenseargument, was translated into English andpubl ished in The Japanese Annual ofInternational Law for 1964. The full text of theEnglish translation is also reprinted in R. Falkand S. Mendlovitz eds., Towards A Theory ofWar Prevention (World Law Fund, 1966). Theoriginal Japanese text of the decision isreproduced in full in the aforementioned bookby Matsui Yasuhiro. See Matsui Yasuhiro,op.cit., pp.206 – 246.20 See the full text of the complaint reproducedin Matsui Yasuhiro, op.cit., pp.24 – 36.21 See “The Summary of the Defense Argument”reproduced in Matsui Yasuhiro, op.cit., pp.218– 225.22 The plaintiffs submitted a copy of thisJapanese government’s official protest againstthe U.S to the court. This copy is reproduced inMatsui Yasuhiro, op.cit., pp.248 – 249.23 For details of the bombing of Japanese cities

by the U.S. Army Air Force and its effects onJapanese policies, see, for example, MarkSelden, ‘A Forgotten Holocaust: U.S. BombingStrategy, The Destruction of Japanese Cities,and American Way of War From the Pacific Warto Iraq,’ in Bombing Civilians: A TwentiethCentury History, ed. by Yuki Tanaka andMarilyn Young (New Press, 2009) pp.76 – 96.24 Regarding the effect of the Soviet entry intothe war and the invasion of Russian forces intoManchuria upon Japan’s decision to surrender,see Tsuyoshi Hasegawa, ‘Were the AtomicBombings of Hiroshima and NagasakiJustified?’ in Yuki Tanaka and Marilyn Young,op.cit., pp.97 – 134.25 Matsui Yasuhiro, op.cit., p.22.2 6 See “The Reason for the Decision,”reproduced in Matsui Yasuhiro, op.cit., 225 –246.

Comment on Yuki Tanaka’s “TheAtomic Bombing: The Tokyo WarCrimes Tribunal and the ShimodaCase: Lessons of U.S. Culpability forAnti-Nuclear Legal Movements"

Richard Falk

When I first learned of the Shimoda Case morethan 45 years ago from a young Japanesediplomat who was a student in my course oninternational law at Princeton University, I wasimmediately moved and excited. Movedbecause of the initiative mounted by badlywounded survivors of the atomic bombings whowere seeking symbolic compensation, whileprimarily dedicating themselves to an effort tohave a court of law pronounce upon thesehorrifying atom bombs that demolished thecities of Hiroshima and Nagasaki at the end ofWorld War II. Excited because I believed,naively it turns out, that such a judicialdetermination would have some bearing on thestruggle to outlaw forever this weaponry ofmass destruction, and discourage its

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development, possession, and deployment. Nowthat Yuki Tanaka has revived these issues in hisinformative essay, I find myself still moved bythe Shimoda litigation, but no longer excited asit seems evident that the nuclear weaponsstates, most of all the United States, are asresistant as ever to acknowledging their pastcrime of dropping the atomic bomb and remainresolved to retain nuclear weaponry until theend of time.

True, the current American president, BarackObama, made a visionary speech in Prague onApril 5, 2009, in which he dedicated himself tothe goal of a world without nuclear weapons.Obama also acknowledged, and was the firstpresident to do so in a semi-apologetic spirit,that the United States had a special “moralresponsibility to act” as it was “the only nuclearpower to have used a nuclear weapon.” But theengagement with a world without nuclearweapons was tempered, if not nullified, by aheavy dose of realism: “I’m not naïve. The goalwill not be reached quickly—perhaps not in mylifetime.” This cautionary aside has beenrepeated often, presumably to reassurenuclearists that they can sleep comfortablybecause no serious move to eliminate nuclearweapons for the foreseeable future will betaken. After all, President Obama didn’treinforce his words with a few concrete actsthat would not in any way increase Americansecurity risks: for instance, he could have de-alerted the thousands of nuclear weaponsdeployed during the Cold War; he could haveset new targets for the reduction andeventually elimination of nuclear weapons; hecould more dramatically have pledged theUnited States to do what China has alreadypledged to do—never to be the first to usenuclear weapons; or even more boldly, he couldhave called upon Israel to join with Iran andothers in the Middle East to renounce theoption to acquire or possess nuclear weapons,dismantling the existing Israeli arsenal.

It is likely that the Obama presidency, certainly

as compared to their predecessors, willencourage a variety of arms control stepsassociated with inhibiting any furtherproliferation of nuclear weapons as well as lends u p p o r t t o m e a s u r e s s u c h a s t h ecomprehensive nuclear weapons test ban treaty(CTBT). Such managerial steps are prudent,but do not advance the world one inch closer tothe Obama denuclearizing vision.

In these central respects the Shimoda casecould just as well have been decided on anothergalaxy, or for that matter, never decided at all.It remains virtually unknown even amongpeace activists, except perhaps in Japan, whoseinterest is in nuclear disarmament, or for a few,in the World Court advisory opinion in 1996that concluded by an 11-3 majority that nuclearweapons might be lawful in extremecircumstances, that is, if used to uphold thesurvival of a state facing destruction orconquest. In other words there exists very littlelegal consciousness about the status of nuclearweaponry, and what inhibitions do exist aremainly of an ethical or political character.Several decades ago E.P. Thompson remindedus that even the announced willingness of thenuclear weapons states to possess and possiblyuse such weaponry inscribes in the culture an‘exterminist’ ethos that is extremely harmful,exhibiting a total disregard for the sacrednessof life.

As I read Tanaka, his concerns are associatedwith a revisiting of the past so as to impartlessons to the peace movements of the presentthat will produce a future that corresponds tothe Obama vision of a world without nuclearweaponry. Of course, any recall of Hiroshimaand Nagasaki possesses an inexhaustibleresonance for peace oriented persons, but notthe mainstream. Significantly, the Holocaust isdifferent in this respect. Evoking theHolocaust, visits to the death camps, areritualistically relied upon by politicians and themainstream to establish moral credibility. Onebenefit of Tanaka’s essay is to help us

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understand this enduring denial of thecriminality of the atomic attacks on Japanesecities. In this regard, the comparison of theTokyo War Crimes Tribunal (TWCT) and theShimoda case is illuminating. The TWCT wasessential ly, although less so than itsNuremberg sibling, a morality play staged bythe winners in an ugly war. At least in Tokyothere were several judges from neutralcountries, and an angry Indian judge from stillco lonized India , whose long dissentimpress ive ly cha l lenged the who lepresupposition that Japan was the aggressor inthe Far Eastern part of World War II.

Let me put the issue in a very stark form:winners in a major war are unwilling to castany shadow of responsibility onto their self-glorifying narrative of their victory. Is there theslightest doubt that if Germany or Japan hadsucceeded in developing the atomic bombbefore the United States, then used it let’s sayagainst Boston or Seattle, yet still went on tolose the war, that the use of such a weaponwould have been the major charge leveledagainst their surviving leaders? It is notablethat Germany as loser remains full of remorseabout the Holocaust, and to this day Germansare reluctant to criticize Israel so as to avoidthe slightest implication that the anti-semiticNazi past has not been completely repudiated.The Shimoda case was so notable because itoffered a glimmer of recognition to this legallyneglected awesome atrocity that had beentreated heretofore with respectful silence evenby the Japanese Government. In this sense, aninformal, yet integral part of the Americanoccupation policy was to silence critical voicesin Japan while in Germany insisting on fulldisclosure and reparations for the horrors ofNazism. Revealingly, the Holocaust led directlyto the Genocide Convention whereas the atomicbombings led to the nuclear arms race.

Tanaka instructively relates the valiant effortsof Okamoto Shoichi to invoke international lawboth to ban the atom bomb forever, and to

empower victims to impose some sort ofliability on the perpetrators of the atomicattacks by recourse to American courts on thebasis of a presumed appeal to ‘universaljustice.’ But it turned out to be completelynaïve to suppose that even American liberalswere willing to have the wartime actions oftheir government in what was widely regardedas ‘a just war’ assessed by recourse to theinternat iona l law o f war . Amer ican‘exceptionalism’ (so widely discussed recentlyin relation to the presidency of George W.Bush, particularly in relation to the ‘war onterror’) is nothing new. It is not surprising thatOkamoto’s efforts were unappreciated at thetime by Japanese officials, even by the mayor ofHiroshima. The loser in a major warexperiences what might be called ‘loser’sjustice,’ requiring acknowledgement of yournation’s crimes, while refraining altogetherfrom accusing or even criticising the victor.

Yet fortunately, the people are not as subject tothis geopolitical discipline as are governmentalelites. As Tanaka shows very well, it was notHiroshima and Nagasaki that caused an anti-nuclear populism to erupt in Japan but anincident in 1954 when an American nuclear testexplosion in the Pacific destroyed a Japanesefishing boat, mysteriously named the LuckyDragon, killing entire the crew. Even in thisheightened atmosphere of anti-nuclearism,there was a reluctance among Japanese andAmerican lawyers to push for any United Statesaccountability in a judicial setting. It was onlythe determined efforts of Okamoto and someothers that broke through the barriers ofdenial, initiating this private symbolic action inthe Tokyo District Court in 1955, whichproduced this historic decision pronounced onDecember 7, 1963, the 22nd anniversary of thePearl Harbor attacks.

The Shimoda case stands alone as a legalcondemnation of the atomic attacks, aprecedent in international law that reinforcesthe moral and political rejection of nuclear

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weaponry, but only theoretically. The truth isthat the Shimoda case never had much of animpact. It was not even cited by the judges inthe International Court of Justice (ICJ) in theirlengthy assessments of the legality of nuclearweaponry. Perhaps, this is partly because thedeciding court was not a high court in Japan,and partly because even the ICJ was not willingto view even retrospectively the allegedcriminality of the 1945 atomic attacks onJapanese cities. In this respect, decades laterthe exemption of victors from legal scrutiny hasnot dissipated. Nothing would have been morenatural than for the judges in the ICJ to groundtheir legal assessment in the abstract upon theone instance in which such weaponry had beenused.

Tanaka understandably calls for the widedissemination of the Shimoda text as part of theongoing worldwide struggle to abolish nuclearweapons. It is a dramatic story that imparts asense of tragedy and atrocity that resulted fromthe atomic attacks, but whether the legalassessment is of any great importance 46 yearslater is questionable. I believe that more thantwenty years ago an obscure Americanplaywright was inspired by the case to composea theater piece built around the stories of thesurvivors. In this respect, the continuousretelling of the suffering inflicted at Hiroshimaand Nagasaki is the most powerful means wehave of resisting the efforts of power-wieldersto bury concerns about nuclear war in the abstractions of deterrence and arcanediscussions of military strategy. Any saneperson should realize without elaboratedemonstrations by lawyers and judges that theuse or threat of weapons of mass destruction toattack cities is a crime against humanity ofgenocidal proportions. And yet.

As mentioned, the new American president hasvoiced his idealistic commitment to a worldwithout nuclear weapons. We should bethankful for the articulation of such asentiment, however belatedly it comes. But we

should also insist that he follow through or elsewe who applauded the Prague speech will beproperly dismissed as not serious. So far, theevidence is not encouraging. There stillremains a global setting shaped by anAmerican leadership in which the overridingconcern about nuclear weapons is concentratedon countries without such weapons rather thanon those that possess the weapons, and are noteven willing to renounce options to use them. S o l o n g a s n o n p r o l i f e r a t i o n i s t h epreoccupation, and disarmament a goalsituated beyond the horizon of feasibility, theremay be lofty talk by leaders about getting rid ofnuclear weapons, but expectations shouldremain low.

The United States is particularly sensitiveabout pronouncements of unlawfulness andcriminality. It should be remembered that theU.S. Government, during the Clintonpresidency used its full weight in the UNGeneral Assembly to discourage governmentsfrom asking the ICJ for a judicial opinion as tothe legality of nuclear weapons. The fact thatthis geopolitical maneuver was unsuccessfulsuggests that at some level of policy manygovernments would like to see these weaponsoutlawed and eliminated. It is also notable thatthe judges in the ICJ were unanimous in theirinsistence that nuclear weapons states had alegal obligation under Article VI of theNonproliferation Treaty to pursue nucleardisarmament in good faith. It is equally notablethat such an obligation, clearly spelled out, hasbeen ignored without adverse consequences.Non-nuclear states could indicate that theywould regard the NPT as void if the nuclearweapons states did not fulfill their obligations. If this were to happen, then visionary rhetoriccould begin to be taken seriously. Until then, itwill be up to political activists around theworld, probably most prominently in Japan andthe United States, to keep the memories ofHiroshima and Nagasaki alive, as well as toinsist that nuclear abolition is the path ofhuman decency, and quite possibly of human

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survival.

And part of this undertaking is to carry on thebattle against forgetfulness in the manner ofTanaka’s essay recounting the background andsignificance of the nearly forgotten Shimodacase.

As with so many issues of global justice, thestruggle to eliminate nuclear weaponrydepends mostly on societal activism. Evengovernments that are most threatened bynuclear weaponry have not challengednuclearism. The UN has not been a notable siteof struggle except through the use of the ICJ onone occasion. Little attempt was made toimplement its finding as to questionablelegality or the obligation to pursue nucleardisarmament. Maybe the Shimoda case willgain a more receptive hearing around the worldin light of the Obama spark. It always comes asa surprise when the flames of opposition burstforth to challenge deeply ingrained humanwrongs. It was so with slavery and withcolonialism. Let’s hope it will be soon so withrespect to nuclearism.

Richard Falk , professor emeri tus ofinternational law and practice at PrincetonUniversity, is the United Nations Human RightsRapporteur in the Occupied Territories. He isthe author of many books, including The Costsof War: International Law, the UN, and WorldO r d e r A f t e r I r a q(http://www.amazon.com/dp/0415955092/?tag=theasipacjo0b-20).

He wrote this article for The Asia-PacificJournal.

Recommended citation: Recommended citation:

Yuki Tanaka and Richard Falk, "The AtomicBombing, The Tokyo War Crimes Tribunal andthe Shimoda Case: Lessons for Anti-NuclearLegal Movements," The Asia-Pacific Journal,Vol. 44-3-09, November 2, 2009.

Related articles:

Daniel Ellsberg, Building a Better Bomb:Reflections on the Atomic Bomb, theHydrogen Bomb, and the Neutron Bombhttp://japanfocus.org/-Daniel-Ellsberg/3201 Marilyn B. Young, Bombing Civilians: AnAmerican Traditionhttp://japanfocus.org/-Marilyn-Young/3125 Peter J. Kuznick, The Decision to Risk theFuture: Harry Truman, the Atomic Bomband the Apocalyptic Narrativehttp://japanfocus.org/-Peter_J_-Kuznick/2479

Mark Selden, A Forgotten Holocaust: USBombing Strategy, the Destruction of JapaneseCities and the American Way of War fromWorld War II to Iraq

http://japanfocus.org/-Mark-Selden/2414

APJ | JF 7 | 44 | 3

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