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The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki

Published online by Cambridge University Press:  28 March 2017

Richard A. Falk
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Extract

In May of 1955 five individuals instituted a legal action against the Japanese Government to recover damages for injuries allegedly sustained as a consequence of the atomic bombings of Hiroshima and Nagasaki in the closing days of World War II. On December 7, 1963, the twenty-second anniversary of the surprise attack by Japan upon Pearl Harbor, the District Court of Tokyo delivered its lengthy decision in the case. The decision has been translated into English and reprinted in full in The Japanese Annual of International Law for 1964. This enables an accounting of this singular attempt by a court of law to wrestle with the special legal problems arising from recourse to atomic warfare.

Type
Research Article
Information
American Journal of International Law , Volume 59 , Issue 4 , October 1965 , pp. 759 - 793
Copyright
Copyright © American Society of International Law 1965

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References

1 Pp. 212-252 [cited hereinafter by page reference alone]; digested in 58 A.J.I.L. 1016 (1964).

2 This explanation has been given to me by Yuichi Takano, Professor of International Law, in the course of a correspondence about the case. Professor Takano served as one of three experts on international law appointed by the court in the Shimoda case.

3 The need for a revival of interest in the international law of war has been stressed by several authors, but by none more insistently than Josef Kunz. See, in particular, his “The Chaotic Status of the Laws of War and the Urgent Necessity for their Revision,” 45 A.J.I.L. 37 (1951).

4 Banco National de Cuba v.Sabbatino, 376 U. S. 398 (1964); for some depiction of these issues see Talk, “The Complexity of Sabbatino,” 58 A.J.I.L. 935 (1964).

5 At present, the only available English translation of the opinion is to be found in the Japanese Annual. This periodical is often difficult to obtain. Besides, the reported version of Shimoda contains many passages that are rather obscure. It is on this basis that such a long explication of the case is offered here.

6 The description of the injuries is itself a very dramatic aspect of the Shimoda opinion and serves to make it one of the prime documents of war in the atomic age. Each of the plaintiffs is a survivor of the attacks and suffers from a variety of grotesque disabilities. As well, the family of each claimant was either completely wiped out or maimed; this, too, is described in detail. I have tried to assess the non-legal importance of the case in a short article, “The Claimants of Hiroshima,” The Nation, Feb. 15, 1965, pp. 157-161.

7 The exchange rate is about 360 yen for one United States dollar. The recoveries sought, then, were for rather modest amounts.

8 Art. 1: (1) If an official or servant of the state or a public body intentionally or negligently commits an unlawful act and injures another in the course of performing his duties, the state or public body is liable to make compensation therefor. (2) In the case of the preceding paragraph, if there has been intent or gross negligence, the state or the public body may claim compensation from the official or servant involved. (Koklea Baisho Ho,Law No. 125, Oct. 27, 1947.)

9 Art. 29: (1) The right to own or to hold property is inviolable. (2) Property rights shall be defined by law, in conformity with the public welfare. (3) Private property may be taken for public use upon just compensation therefor. (Nihon Koku Kempo,Nov. 3, 1947.)

10 The range of issues considered in Shimoda is very well anticipated in two articles by William V. O'Brien. See “The Meaning of Military Necessity in International Law,” 1 Yearbook of World Polity 109 (1957); and “Legitimate Military Necessity in Nuclear War,” 2 ibid.35 .(I960) (this second article is hereinafter referred to as O'Brien).

11 E.g.,Stimson, “The Decision to Use the Atomic Bomb,” 194 Harper's Magazine 97 (1947); 1 Truman, Memoirs—Tear of Decisions 419-420 (1955).

12 The documents connected with the Japanese surrender, including the Potsdam Proclamation [not Declaration] are conveniently collected. Butow, Japan's Decision to Surrender 241-250 (1959); see also Occupation of Japan (U. S. State Dept.) 51-64.

13 The Japanese Government filed a diplomatic protest against the bombing of Hiroshima by submitting a formal note to the United States by way of the Swiss Government on Aug. 10, 1945. The principal grounds relied upon in the protest were that the atomic bomb caused indiscriminate suffering and produced unnecessary pain, and, as such, violated the principles set forth in the Annex to the Hague Convention respecting the Laws and Customs of War on Land, Arts. 22 and 23 (e) of the Regulations respecting the Laws and Customs of War on Land. This appeal to law was supplemented by a general appeal to elementary standards of civilization prohibiting recourse to methods of warfare that cause civilians great damage, and damage such immune objects as hospitals, shrines, temples, and schools. In fact, the diplomatic note calls the atomic bombing “ a new offense against the civilization of mankind.“

14 This usage of “act of state” suggests that United States courts will not question the validity of official acts performed by their own Executive. In actual fact in American practice, the term ‘ ‘ act of state'’ is only used in litigation that questions the validity of an official act of a foreign government. However, Shimoda is correct in terms of results, if not in terms of doctrinal explanation. For a leading United States case dealing with internal deference, see United States v.Curtiss-Wright Export Co., 299 U. S. 304 (1936); cf.also Hooper v.United States, 22 Ct. CI. 408 (1887), note 51 below.

15 But recall that the plaintiff does advance the theory that the wrongful waiver in Art. 19(a) of the Peace Treaty makes Japan an independent wrongdoer.

16 The plaintiff's submission on this point is quite obscure, as reported. See numbered par. 4 on p. 227, and my interpretation, pp. 761-762 above.

17 This view by the defense of the procedure for pursuing international claims seems rather rigid, especially as far as the need for recourse to the International Court of Justice is concerned. There are many other decision-makers used in international society for the settlement of international claims. See generally Lillich and Christenson, International Claims: Their Preparation and Presentation (1962).

18 The defense appears to be making an inconsistent contention in relation to the waiver issue. On the one hand, it wants to maintain that the waiver extinguished whatever rights the plaintiffs might have possessed. On the other, it wants to establish that there were no rights to waive so that the Japanese Government cannot be held accountable for a wrongful exercise of governmental power by agreeing to the waiver. The position is not truly inconsistent, however, as the defense wants, if possible, to show that the waiver issue is irrelevant because there was nothing to waive. However, if the court disagrees, then the defense wants to rely upon the waiver to extinguish the plaintiff's cause of action, even though this risks a finding of responsibility as a result of a wrongful waiver.

19 There is a considerable difference in the casualties reported. The plaintiffs list 260,000 killed at Hiroshima, 73,884 at Nagasaki; similar discrepancies exist for the figures on wounded at each place, the plaintiff contending 156,000 at Hiroshima, 76,796 at Nagasaki, and the defendant 51,408 at Hiroshima, 41,847 at Nagasaki.

20 The bombs used against Japan had an explosive power approximating 20,000 tons of TNT (20 kilotons), whereas current nuclear warheads in standard weapons systems have an explosive power varying between 1,000,000 and 10,000,000 tons of TNT (1-10 megatons), and some of the nuclear devices that have been tested have an explosive capacity of over 50 megatons. The ratio between the bombs used in World War II and a 50-megaton device is 1: 2500.

21 Throughout this discussion ‘ ‘ atomic'’ and ‘ ‘ nuclear'’ weapons will be treated alike for purposes of legal analysis. Also, some comments will be made to clarify obscure passages in the decision. The translated version of the decision will be treated as “authoritative” when it results in awkward, and even incorrect, English. The Shimoda opinion contains almost no formal documentation.

22 The following legal materials are mentioned by the court as relevant to its deliberations: St. Petersburg Declaration (1868), 1 A.J.I.L. Supp. 95 (1907); Hague Convention on the Law and Customs of Land Warfare and Annex of Regulations (1899), Declaration on Expanding Bullets (1899), ibid.129, 155; Hague Convention on the Law and Customs of Land Warfare (1907), 2 A.J.I.L. Supp. 90 (1908); Declaration Prohibiting Aerial Bombardment (1907), ibid.216; Treaty of Five Countries Concerning Submarines and Poisonous Gases (1922), 16 A.J.I.L. Supp. 57 (1922); Draft Rules of Air Warfare (1923), 32 ibid.12 (1938); Protocol Prohibiting the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (1925), 25 ibid.94 (1931). These various legal documents are all to be found in the relevant volumes of Hudson, International Legislation, and in The Hague Conventions and Declarations of 1899 and 1907 (2nd ed., Scott, 1915).

23 Most authors consider the relevant legal norms to be lapsed as a consequence of persistent violation, even if they are granted a hypothetical existence. See, in particular, McDougal and Feliciano, Law and Minimum World Public Order 640-659 (1961) (hereinafter cited as McDougal-Feliciano); for comprehensive analysis of the relations between air war and international law see Spaight, Air Power and War Eights (3rd ed., 1947).

24 For a discussion of this process of evolving legal standards at the national level out of international declarations, see Schwelb, Human Eights and the International Community (1964).

25 Such a question is at the root of two recent studies of the lawmaking activities of the political organs of the United Nations. Higgins, The Development of International Law through the Political Organs of the United Nations (1963); Schachter, “The Relation of Law, Politics and Action in the United Nations,” 109 Hague Academy Recueil des Cours 165 (1963, II ).

26 These principles include the requirement of necessity attached to a military justification and a concept of proportionality with respect to the ratio between military and non-military destruction. See McDougal-Feliciano, esp. 59-96, 529-671; O'Brien 35-63.

27 Cf.helpful discussion in Tucker, The Law of War and Neutrality at Sea (Vol. 50, International Law Studies, Naval War College) 54-55 (1955) (hereinafter cited as Tucker); cp.Schwarzenberger, The Legality of Nuclear Weapons 25-49 (1958); see also Lauterpacht, “The Problem of the Revision of the Law of War,” 29 Brit. Yr. Bk. Int. Law 360 (1952).

28 It should be observed that there has apparently never been evidence that a belligerent has refrained from using a weapon that might give it a decisive advantage out of deference to a legal prohibition. See, e.g.,O'Brien 92; cf.also Baxter, “The R61e of Law in Modern War,” 1953 Proceedings, American Society of International Law 90 (hereinafter referred to as Baxter); and see general exposition of this view point in Brodie, Strategy in the Missile Age (1959).

29 The opinion invokes Art. 25 of the Hague Regulations on the Law of Land Warfare (1907), and Arts. 1 and 2 of the Hague Convention concerning Naval Bombardment (1907), 2 A.J.I.L. Supp. 147 (1908).

30 The court also quotes Art. 24(1). The text of the Hague Rules of Aerial Warfare is in 32 A.J.I.L. Supp. 12 (1938).

31 See pp. 770-771 above.

32 The relevant language is italicized by the court: “ … even if the aerial bombardment has only a military objective as the target of its attack, it is proper to understand that an aerial bombardment with an atomic bomb on both cities of Hiroshima and Nagasaki was an illegal act of hostility as the indiscriminate aerial bombardment on undefended cities.”(p. 239.)

33 Consistent with the mode of analysis adopted by the court (see Sees. II and III below), it would not be necessary to condemn or exonerate strategic area bombing as a whole,but only to pass judgment upon its various specifio occasions of employment.

34 Cf.on this Spaight, who upholds the legality of strategic area bombing and challenges the legality of the atomic attacks in Air Power and War Eights 265-281 (3rd ed., 1947), with McDougal-Feliciano 665-666, who regard the strategic area bombing and the atomic attacks as having the same legal footing.

35 For texts, see documentary sources given in note 22 above.

36 For reliance upon the relevance of pre-atomic international law, especially by analogy to the prohibition of poison gas, see Singh, Nuclear Weapons and International Law 147-173 (1959); Schwarzenberger, op. cit.note 27 above, at 26-38; for skepticism, see McDougal-Feliciano 659-668; Tucker 50-55; O'Brien 88-94; Stone, Legal Controls of International Conflict 547-548 (1954).

37 The defendant asserted this as part of its argument for the legality of the atomic attacks. One commentator in the United States went so far as to conjecture that these attacks “saved the very national existence of Japan. It may have been a blessing in disguise to the Japanese nation: the Divine Wind that saved Japan from national hari-kiri.” Stowell, “The Laws of War and the Atomic Bomb,” 39 A.J.I.L. 784 (1945).

38 This second rationale is important because it liberates, to some extent, the Shimoda decision from the archaic distinction between a defended and an undefended city. See Spaight, op. cit.note 23, at 261: “Not for a generation or more has the accepted criterion of a place's liability been its being fortified or not. Under the Land War Rules of The Hague (1907, Art. 25) such liability depends on its being defended;being defended and being fortified are, of course, not necessarily synonymous. But even the criterion of defence has in its turn become outmoded. A town's immunity rests today on its containing no military objectives… . “ But see retention of distinction in Art. 621(d) of the current United States manual, Law of Naval Warfare (1955).

39 There are two contentions here: first, the principles underlying specific rules may be extended to prohibit activity unregulated by specific rules—the principles serve as a sufficient legal criterion by themselves; second, prior specific rules incorporate and exhibit principles, and the rules may be extended to cover analogous situations.

40 Art. VI, par. 2, reads in the relevant clause: “and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land… . “

41 The court gives some examples of treaties that have conferred procedural capacity upon individuals on p. 244.

42 Having considered the availability of an internationalclaim, the Tokyo court goes on to inquire whether these claimants might not be able to bring a nationalclaim based upon international law in the domestic courts of one or the other country. It is in this context that doctrines of sovereign immunity and act of state bar adjudication.

43 The Shimoda opinion reasons this way apparently ( it is not made explicit) because the court considers that the case, in one sense, is being tried as ifit were brought against the United States; for without the waiver clause Japan would clearly not be a permissible defendant. Therefore, it is necessary to see whether the plaintiffs would have had a claim in the absence of a waiver so as to determine if anything of value was waived. It is in this respect that it is relevant to assess whether the plaintiff could have proceeded against the United States in either United States or Japanese domestic courts.

44 Cf.Federal Tort Claims Act, 28 U.S.C. $2680; see Note, “The Discretionary Function Exception of the Federal Tort Claims Act,” 66 Harvard Law Rev. 488 (1953).

45 Art. 19(a): “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.“

46 There is nothing to complain about because there is nothing lost. Without the waiver the plaintiff would have had no rights arising out of the law governing diplomatic protection.

47 See p. 249; cf.also note 43.

48 This conclusion reflects the view that the international (state-to-state) claims were not “claims of Japanese nationals” within the meaning of Art. 19(a).

49 This seems confusing. When the court refers to ‘ ‘ the claims of international law'’ in this setting, it means the state-to-state claims, but not the claims that might, but for sovereign immunity, be brought in a domestic court on the basis of international law.

50 Here, again, some additional comment may avoid confusion. The court construes the waiver as directed at the possibility of claims brought in domestic courts, but considers these potential claims as not giving rise to “rights” because they were foreclosed ab initioby the bar of sovereign immunity operative in both the United States and Japan.

51 Cf.analogous argument in the French Spoliation Cases, where individuals contended that the United States Government was liable for the satisfaction of claims waived by treaty. See Hooper v.United States, 22 Ct. CI. 408 (1887). Subsequently, Congress accepted the merit of these contentions and granted relief by statute, just as the court urges in Shimoda. I am grateful to Professor Quincy Wright for calling my attention to this analogy.

52 This conclusion is based upon my correspondence with Professor Yuichi Takano.

53 There seems to be some ground for thinking that world public opinion played a role in creating a climate favorable for the negotiation of the Partial Nuclear Test Ban Treaty of 1963.

54 See pp. 770-772 above for discussion of use by the Tokyo District Court of legal documents almost irrespective of their formal status as binding or not.

55 Baxter 90.

56 lbid.at 91; cf.O'Brien on the r61e of natural law as a source of constraint that should always take precedence over pragmatic considerations (pp. 100-113); however, note that O'Brien interprets natural law in such a way that “ a duty of success, particularly against a Communist attack” (p. 113) figures prominently in the process of identifying the limits of legitimate military necessity.

57 Baxter at 84-95.

58 Relevant to an assessment of the connection between effectiveness and validity in international law are Tucker, “The Principle of Effectiveness in International Law,” in Lipsky (ed.), Law and Politics in the World Community 31-48 (1953) and Falk, “Janus Tormented: The International Law of Internal War,” in Rosenau (ed.), International Aspect of Civil Strife (1964); in the context of the legal regulation of nuclear weapons, see Schwarzenberger, op. cit.note 27 above, at 57-59.

59 On the legality of strategic area bombing, see sources cited in note 34; for a useful analysis of strategic bombing in World War II, see Brodie, op. cit.note 28 above, at 107-144.

60 See discussion pp. 773-774 above.

61 See sources cited in note 27 above.

62 The LotusCase, 1S27, P.C.I.J., Ser. A, No. 10.

63 Law of Naval Warfare (1955); cp.Par. 35 of the U. S. Army's Law of Land Warfare: “The use of explosive ‘atomic weapons,’ whether by air, sea or land forces, cannot as such be regarded as violative of international law in the absence of any customary rule of international law or international convention restricting their employment”.

64 Art. 613 contains a footnote that says that “the employment, however, of nuclear weapons is subject to the basic principles stated in Section 220 and Article 221.” Art. 220 sets out the three basic principles of the law of war—military necessity, humanity, and chivalry—that limit the discretion of belligerents in all circumstances. The footnote also refers the reader to another footnote that forbids the use of any weapon that causes unnecessary suffering or devastation not justified by military necessity. It also refers to Arts. 621 and 622, which limit the right of bombardment. In Art. 621(a), for instance, “the wanton destruction of cities, towns, or villages, or any devastation not justified by military necessity, is prohibited“; and Art. 621(c) states that “Bombardment for the sole purpose of terrorizing the civilian population is prohibited.” Thus the footnote limitations upon Art. 613 might lead one to construe it to be compatible with the decision in Shimoda.

65 See authorities cited in note 11 above.

66 For some assessment of the impact of the atomic bombing upon Japan's decision to surrender, see Brodie, op. cit.note 28 above, at 138-152, and Butow, Japan's Decision to Surrender (1954).

67 For the claim that lives were saved see Stimson, ‘ ‘ The Decision to Use the Atomic Bomb,” 3 Bulletin of Atomic Scientists 37 (1947); Stowell, loo. cit.note 37 above.

68 To accept the approach of the ‘ ‘ radical contextualists” is to move international law into virtual harmony with the practice and theory of “total war.” The only limitation is that the belligerent policy be undertaken in the good faith expectation that it will somehow weaken the enemy, and thereby contribute to the war effort. And since the enemy's morale is a relevant target for military attack, any tactic, however terroristic, is legitimate.

69 O ‘Brien deals with the connection between rules and principles very well in his articles on military necessity. Loc. cit.note 10 above. For general treatment of the relationship between different kinds of legal norms see Schachter, loc. cit.note 25 above; see, in general, Pound, “Hierarchy of Sources and Forms in Different Systems of Law,” 7 Tulane Law Rev. 475 (1933).

70 The three experts who submitted opinions to the court were Kaoru Yasui, Shigejiro Tabata, and Yuichi Takano. Each is a professor of international law in a Japanese university.

71 It should be understood that these two modes of thought are ideal typesuseful to illustrate a basic conflict of emphasis in the relevant legal literature. Almost no writer is a. pure example of one or the other type, although most lean toward one or the other pole.

72 Cp.Stone, Aggression and World Order (1958), with Sohn, “The Definition of Aggression,” 45 Va. Law Rev. 697 (1959); and Henkin, “Force, Intervention and Neutrality in Contemporary International Law,” with McDougal's “Comments” in criticism, 1963 Proceedings, American Society of International Law 147, 163.

73 For a sharp comparison of these two models of international order, see Knorr, “Supranational versus International Models of General and Complete Disarmament,” in Barnet and Talk (eds.), Security Through Disarmament 384-410 (1965).

74 Some examples: Singh, op. cit.note 36 above; Schwarzenberger op. cit.note 27 above; Spaight, op. cit.note 23 above, and The Atomic Problem (1948).

75 Examples of the contextual approach include McDougal-Feliciano, 0 ‘Brien, and Julius Stone, op. cit.note 36 above. In the discussion that follows there is an important distinction to be noted between the use of context by Shimoda and its use by writers such as Myres MeDougal and Julius Stone. The Shimoda decision relies upon contextual thinking to suggest that “the facts” as well as the properties of a weapon must be examined to determine whether the use of a weapon on a given occasion is legal or illegal, and thereby to resist the temptation to decide whether atomic weapons, as such, are legal or not. McDougal and Stone, on the other hand, rely upon contextual thinking to take into account considerations of justice and policy, whether the user of the weapons was pursuing beneficial objectives, and so on. It is mainly in this latter sense of context that “the contextual approach” seems vulnerable to criticism as encouraging a subjective appreciation of the content of legal rights and duties. I wish to thank Professor Leo Gross for pointing out to me the need for clarification on this basic matter.

76 2 Oppenheim, International Law 347-351 (7th ed. 1952).

77 Ibid,at 351 (footnote 2).

78 How important is the marginal occasion for this subject matter? It is difficult to carry a response beyond intuitive inclinations connected with the fear of nuclear war as distinct from the fear of other calamities that might be supposed to arise from a renunciation of nuclear weapons.

79 McDougal-Feliciano at 663.

80 Ibid. at 667.

81 See Preface vii-xi.

82 Illustrations of the candor with which these authors take Cold-War considerations into account are available. McDougal and Schlei, “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” 64 Yale Law J. 648 (1955); O'Brien at 35-38, 105-113.

83 McDougal-Feliciano content themselves with a longish and equivocal comment in footnote 421, pp. 660-661, and O'Brien skirts an inquiry on pp. 103-104.

84 Compare Baxter's views, pp. 782-783 above.

85 As the opinion puts it: “The defendant State caused many nationals to die, injured them, and drove them to a precarious life by the war which it opened on its own authority and responsibility.” (p. 250.)

86 TJ.N. General Assembly Res. 1653 (XVI) adopted by a vote of 55-20-26 (roll call).

87 See authorities cited in note 36 above.

88 On weight to be given General Assembly resolutions see Lande, “The Changing Effectiveness of General Assembly Resolutions,” 1964 Proceedings, American Society of International Law 162; Skubiszewski, ‘ ‘ The General Assembly of the United Nations and its Power to Influence National Action,” ibid,at 153; in general, on the r61e of consensus in the formation of legal standards, see Jenks, “The Will of the World Community as the Basis of Obligation in International Law,” in Law, Welfare, and Freedom 83-100 (1963), and Falk, “The Adequacy of Contemporary Theories of International Law—Gaps in Legal Thinking,” 50 Va. Law Bev. 231, 243-248 (1964).

89 See especially Final Act of 1964 Cairo Conference of Non-Aligned Countries.

90 For discussion of various aspects of this approach, see Tucker, Knorr, Falk, and Bull, “Proposal for No First Use of Nuclear Weapons: Pros and Cons,” Policy Memorandum No. 28, Center of International Studies, Princeton University, 1963.