Japanese Journal of International Law, No. 8, 1964.
[Hanrei Jiho [Decisions Bulletin] Footnotes are added by translator.]
PUBLIC INTERNATIONAL LAW – ATOMIC BOMBING OF HIROSHIMA AND NAGASAKI WAS AN ILLEGAL ACT IN VIOLATION OF INTERNATIONAL LAW.
PUBLIC INTERNATIONAL LAW – CUSTOMARY INTERNATIONAL LAW AS WELL AS POSITIVE INTERNATIONAL LAW (TREATIES) IS PART OF THE MUNICIPAL LAW OF JAPAN, AND VIOLATION GIVES INDIVIDUAL CLAIM FOR REDRESS UNDER MUNICIPAL LAW.
TREATIES – WAIVER OF MUNICIPAL LAW CLAIMS OF ATOMIC BOMB VICTIMS UNDER ARTICLE 19(a) OF THE TREATY OF PEACE WAS NOT AN ILLEGAL ACT OF STATE UNDER ARTICLE 1 OF THE STATE COMPENSATION LAW.
DESIGNATION OF CASE:
R. Shimoda (Ryuichi Shimoda), No. 945 Nakahiro-Machi, Hiroshima, and four others, represented by T. Kato (Takahisa Kato), Y. Matsui (Yasuhiro Matsui), K. Morikawa (Kinju Morikawa), K. Mizuta (Kenichi Mizuta), S. Furuno (Shuzo Furuno), T. Suzuki (Toro Suzuki), H. Ashida (Hiroshi Ashida), M. Ono (Masao Ono), and S. Shinagawa (Sumio Shinagawa), attorneys-at-law. .
1. The claims of the plaintiffs are dismissed on the merits.
I. Claims of the plaintiffs.
The plaintiffs seek the following judgement and declaration of provisional execution: 1. The defendant State shall pay R. Shimoda (Ryuichi Shimoda), plaintiff, 300,000 yen and interest thereon at the rate of 5% per annum from May 24, 1955, until paid in full.
2. The defendant State shall pay M. Tada (Maki Tada), plaintiff, 200,000 yen and interest thereon at the rate of 5% per annum from May 24, 1955, until paid in full.
3. The defendant State shall pay S. Hamabe (Suji Hamabe), plaintiff, 200,000 yen and interest thereon at the rate of 5% per annum from May 24, 1955, until paid in full.
4. The defendant State shall pay B. Iwabuchi (Bunji Iwabuchi) , plaintiff, 200,000 yen and interest thereon at the rate of 5% per annum from May 25, 1955, until paid in full.
5. The defendant State shall pay T. Kawashima (Tochiko Kawashima), plaintiff, 200,000 yen and interest thereon at rate of 5% per annum from May 25, 1955, until paid in full.
6. The costs of litigation shall be borne by the plaintiffs.
II. Claim of the defendant State.
The defendant State seeks the judgment to the same effect as in the text of Judgment above.
III. Cause of the plaintiffs’ claims.
1. Atomic bombing and its effect.
(1) Around 8:15 a.m. on August 6, 1945, a B-29 bomber piloted by Colonel Tibbetts, U.S. Army Air Forces, dropped a bomb called a uranium bomb on the City of Hiroshima under the orders of U.S. President H. S. Truman. The uranium bomb exploded in the air. A furious bomb-shell blast with a streak of strong flash followed, and buildings in Hiroshima collapsed with a crash. The city was blacked out by a cloud of dust caused by the blast, and was everywhere enveloped in raging flames. All mortals including pregnant women and babies at the breasts of their mothers who were within a radius of some four kilometers of the epicenter, were killed in an instant. Also, in other areas people were horribly wounded on their bodies, owing to the special power of injury of the explosion; or they were flooded with radial rays and suffered from atomic bomb injuries, although they were not scarred on their bodies. And there is still no end to consequential deaths even today, ten and several years after. (2) Around 11:02 a.m. on August 9, 1945, three days after the aerial bombardment of Hiroshima, another B-29 bomber piloted by Major Sweeney, U.S. Army Air Forces, dropped a bomb called plutonium bomb on the City of Nagasaki. The plutonium bomb exploded in the air into a fire-ball of some 70 meters in diameter. The next instant, the fire-ball expanded quickly, struck the earth, and turned into white smoke while changing all things on the earth into radioactive things. Consequently, also in Nagasaki, the same destruction and extremely cruel casualty to innocent people occurred as in Hiroshima. (3) Neither the existence nor the name of the uranium bomb which was dropped on Hiroshima, or of the plutonium bomb dropped on Nagasaki, were known to mankind that day; but they were later called atomic bombs, and were to put the people of the world into deep fear. The atomic bomb discharges energy generated from the nuclear fission of the uranium atom and the plutonium atom, and energy generated from the chain reaction of the nuclear fission in the shape of light, heat, radial rays, pressure from bomb explosion, etc. The bomb not only has a destructive power beyond the imagination of mankind both in quantity and in quality, but also by thermo-radiant ray sets fire to things not directly destroyed, and gives people burns by flash (different from burns by flame). The bomb inevitably results in indiscriminate casualties over some four kilometers in radius from the epicenter, destroys buildings by bomb-shell blast, and further gives rise to atomic bomb injuries by radial rays and causes people to die gradually. (4) Among the casualties of the atomic bombs dropped on Hiroshima and Nagasaki, the number of killed and wounded is shown in Exhibit I below. Numbers, however, fail to describe the disastrous scene after the atomic bombing. People in rags of hanging skin wandered about and lamented aloud among dead bodies. It was an extremely sad sight beyond the description of a burning hell, and beyond all imagination of anything heretofore known in human history. Thus, the effect of injury of the atomic bomb is remarkably great in comparison with the highly efficient bombs of the past, and besides the atomic bomb gives excessively unnecessary pain. Moreover, it is inevitable that atomic bombing results in indiscriminate bombardment. Therefore, use of the atomic bomb is an extremely cruel means of injuring the enemy. 2. International law aspects.
The dropping of the atomic bomb was a hostile act taken by the United States, which was then in a state of war with Japan, and was an illegal act of hostility contrary to the positive international law of that day (treaties and customary laws). (1)(a) By the St. Petersburg Declaration (December 11, 1868), the parties agreed upon the following matters: The crisis of war must be limited as much as possible with the advance of civilization. The one just objective of war is to weaken the enemy’s military force, and in order to accomplish this objective, as many people as possible must be placed out of battle. The use of a weapon designed to increase the pain of people placed out of battle, or to bring about their death, is beyond the limits of the above objective of war and contrary to humanity. Therefore, in case of war, the contracting parties promise to renounce the freedom of use by land forces or sea forces of explosives and combustive projectiles under 400 grammes.
(b) The Hague Regulations respecting the Laws and Customs of War on Land, 1899, which are a code pertaining to the general law of war on land, mention in article 22 the use of poison or poisonous weapons, and the use of such weapons, projectiles, and other material’s causing unnecessary pain as matters especially prohibited. The same Regulations prohibit in article 25 attack and bombardment on undefended cities, and provide for the necessity of previous notice in case of bombardment (article 26) and the limitation of the objective of attack to military objectives (article 27). (c) The same conclusion is also drawn from the interpretation of the Declaration (1907) prohibiting the use of special projectiles (dum-dum bullets by popular name), which was adopted at the Second Hague Conference, and the Protocol (1925) respecting the prohibition of poison gas, etc., which was adopted in Geneva. (d) Article 22 of the Draft Rules of Air Warfare, 1923, prohibits aerial bombardment for the purpose of terrorizing the civilian population, destroying private property not of military character, or injuring non-combatants. The same Draft Rules provide in article 24 that aerial bombardment is legitimate only where directed at a military objective (paragraphs 1 and 2); that the bombardment of cities, towns, villages, dwellings, or buildings not in the immediate neighborhood of operations of land forces is prohibited (paragraph 3); that in cases where bombardment cannot be made without the indiscriminate bombardment of the civilian population, bombardment must be abstained (paragraph 3); that in the immediate neighborhood of the operations of land forces, bombardment is legitimate only where the military concentration is sufficiently important to justify such bombardment, having regard to the danger caused to the civilian population (paragraph 4) ; and that a belligerent State is liable to pay compensation for injuries to person and property caused by violation of the provisions of this article (paragraph 5). The Draft Rules of Air Warfare are not positive law, but we can recognize the effect of their contents as a logical international law or a customary international law. The Convention on the Prevention and Punishment of Genocide was adopted by the United Nations General Assembly in 1948. The contents of this convention, which was adopted after the atomic bombing in question, existed as a logical international law of mankind before the dropping of the atomic bomb; and they were nothing but what was later stipulated. (e) The above international laws respecting acts of hostility naturally apply to atomic bombing as positive international law of that day. Although the atomic bomb is a new weapon, and it is difficult contextually to apply the above international laws directly or mutatis mutandis to the atomic bomb, we should apply the proper clauses directly or mutatis mutandis to the atomic bomb true to the spirit of legislation of the whole text, including the clauses concerned; and we should not take the view that each of the above international laws does not apply or has become invalid by reason of change of circumstances by the appearance of the atomic bomb. Even if the above positive international laws do not apply directly or mutatis mutandis, their spirit must be said to have the effect of natural law or logical international law. (2)(a) It was previously stated that the tremendous power of destruction of the atomic bombs dropped on Hiroshima and Nagasaki resulted in indiscriminate casualties without distinguishing between combatant and noncombatant within a radius of some four kilometers of the epicenter. This effect of the atomic bomb was a well-known fact among persons who had hands in the research and production of the atomic bomb in the United States, including President Truman. Further, the Hiroshima and Nagasaki of that day were not centers of war potential of Japan; and they were neither important military bases nor so-called defended places against occupation. Therefore, the acts of atomic bombing Hiroshima and Nagasaki were so-called indiscriminate bombardments. The acts were clearly contrary to the express provisions of articles 25, 26 and 27 of the Hague Regulations respecting the Laws and Customs of War on Land, and to articles 22 and 24 of the Draft Rules of Air Warfare. (b) The severity and cruelty of the pain caused to the human body by the power of injury of the atomic bomb, is more tremendous than that of poison or poisonous weapons which are prohibited by article 26 of the Hague Regulation respecting the Laws and Customs of War on Land; and the act of use of the atomic bomb is necessarily illegal from the interpretation of the Declaration prohibiting dum-dum bullets and the Protocol respecting the prohibition of poison gas, etc.
(c) Japan of that day had no atomic bomb of course. It is a matter of general anticipation that the defeat of Japan was inevitable, and the defeat was regarded as a matter of time. Therefore, the atomic bombs were not dropped for the purpose of crushing the war potential of Japan, but as a terrorizing measure intended to make officials and people of Japan lose their fighting spirit. Nor were they dropped as a measure of defense of the United States, or for retaliation. Such is clear from the fact that a committee on the social and political meaning of atomic power, which was composed of seven scientists including Professor James Frank as chairman, recommended against the atomic bombing of Japan and so informed the Secretary of the Army. At the same time, 64 scientists who participated in the research and production of the atomic bomb presented a petition to the President to the same effect as the report of the above committee. The report and the petition, however, were disregarded; and the atomic bomb was dropped without notice on Hiroshima and Nagasaki. (3) The defendant State alleges that it is difficult to form an immediate conclusion on the question whether the atomic bombing was contrary to international law, and as a reason alleges that no positive international law existed on the use of the atomic bomb, and that the illegality of the atomic bomb cannot be deduced from the interpretation of treaties like the Hague Regulations respecting the Laws and Customs of War on Land. However, since logical interpretation is admitted as a general principle of interpretation of international law, the allegation of the defendant State is without reason. The Japanese Government presented a letter of protest as stated in Exhibit III below, to the Government of the United States through the Government of Switzerland on August 10, 1945. The defendant State says that its present view results from objective considerations apart from the standpoint of a belligerent, but does it follow that the Japanese Government of that day did not make a proper interpretation of international law? The plaintiffs rather esteem it even an honor as Japanese people that the Japanese Government made a great protest of the century after grasping the gist of the international law concerned in such a short time. Further, the defendant State seems to have the view that any measure except those definitely prohibited can be used in war until the enemy surrenders. This view is, however, that of a Merchant of Death, or a Politician of Death, and it is highly regrettable. 3. Municipal law aspects.
An act of atomic bombing is contrary to international law, as stated above, and it is contrary to municipal law at the same time. (1) That all homicides are illegal acts, is a universal principle of mankind, which is adopted in the law of every country. However, where homicide is committed as an act of hostility, only where it is regarded as a legal act of hostility in international law may it be justified and excused in municipal law. It cannot be said that all acts to which international law applies are governed only by international law, and that the application of municipal law to such acts is never allowed. Since the act of atomic bombing is contrary to international law, and is not justified, it therefore constitutes an illegal act in municipal law. (2) In the present case, those who assume responsibility for the illegal act are the United States and President Truman, who ordered the dropping of the atomic bomb, but in order to claim damages against them a suit must be filed in the district court of the United States. The lex causae applied in this case is decided by the conflict of laws of the United States, but there is no doubt that in the case of an illegal act, the lex causae is the law of the place of the illegal act and where that place lies over two countries, the law of the place of the result of the illegal act applies. Therefore, the lex causae in the present case is the law of Japan, the place of the result of the illegal act. According to the Japanese law of that day, it is clear that the State assumed responsibility for illegal acts performed by a member of the state organ, and that the member himself was not excused from liability. (3) The defendant State tries to exclude the act of atomic bombing from the object of judicial review, by broaching the theory of Act of State (acte de gouvernement). Indeed, such an act as proclamation of war may be an Act of State, but there is no reason why an individual act of hostility is an Act of State. The so-called theory of Act of State is that, in case of conflict between the Act of State and fundamental human rights, judicial review does not intervene in the conflict; and this is clear from the historical development of the theory. (4) Further, the defendant State broaches the old-fashioned theory of Immunity of the Crown in English law, but it is sufficiently clear in the Declaration of Independence of the United States that the United States did not adopt the theory. Even if there is room for applying the theory, the application must be subject to reasonable restriction; and it goes without saying that such exemption theory cannot apply to the use of atomic bombs, which people agree can evaporate the earth and ruin mankind. This suit must start off with calm, exact, and serious recognition of the horrible power of destruction of the atomic bomb. 4. Claims for damages to sufferers.
(1) As stated above, the acts of atomic bombing by the United States were contrary to international law; and with regard to such acts, not only the defendant State but also the injured individuals may claim damages in international law, both as the subject of rights in international law. Article 19(a) of the Treaty of Peace with Japan (hereinafter referred to as the Japanese Peace Treaty), which provides that: “Japan waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of a state of war,” clearly assumes the existence of Japanese individuals’ claims against the Allied Powers (against the United States in the present case). (2) The defendant State alleges that the plaintiffs’ claims are abstract and theoretical, and are not rights since they have no means of realization. If the view of the defendant State is recognized, international law in time of war will be denied generally. The logical extension of the defendant State’s view is that, even if a country uses a weapon which is strictly prohibited, the country is excused from a charge of illegality in case of victory; that, even if it observes international law, a defeated country cannot charge the other country’s illegality; and that therefore, a country may use a prohibited weapon in order to win a war. The defendant State’s theory that a right which cannot be exercised is not a right, is nothing but dogmatism. The rights of the plaintiffs are exercised by the Government of Japan; and it is enough if the government of their own country can exercise their rights, since a democratic country exists for its people. We must say that the theory that the rights of people in international law must depend on whether or not the government of their own country exercises their rights for them, is a poor theory. (3) Further, the defendant State alleges that the plaintiff-s claims do not exist; that their claims in international law did not exist even before the conclusion of the peace treaty; and that there is no example in history where a claim for damages by the sufferers of the defeated country was realized. Rights, however, are always abstract in substance; their existence is confirmed by the application of a country’s norm of law or norm of international law. The realization of a right is influenced by various relations of power such as military power or economic power, but the existence of a right itself is not influenced by them. 5. Waiver of claims in accordance with the Japanese Peace Treaty.
(1) Article 19(a) of the Japanese Peace Treaty provides that: “Japan waives all claims of Japan and, its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of a state of war.” Japan has waived the claims in municipal law as well as the claims in international law against the United States and President Truman. Consequently, the plaintiffs legally have completely lost the claims for damages against the United States and President Truman. (2) The defendant State alleges that it cannot waive the claims of its nationals since the State of Japan is different from the nationals of Japan in personality. Even if there is logical room for such a point of view, the plaintiff’s claims for damages will not be permitted by article 19(a) of the Japanese Peace Treaty, since a treaty has the full force of law in the United States. Further, for the above reason, if the plaintiffs file a suit in the United States, they cannot easily obtain the cooperation of lawyers or the support of public opinion of the United States. It is even extremely difficult to find cooperators in Japan. Therefore, the plaintiffs’ instituting a suit is almost impossible actually, and we may safely say that the plaintiffs have lost their claims. 6. Responsibility of the defendant State for the waiver of claims.
(1) In every democratic country, the government has the obligation to respect the rights of the people to the maximum. The defendant State illegally concluded the Japanese Peace Treaty and waived the plaintiffs’ claims for damages against the United States and President Truman in accordance with article 19(a) of the Peace Treaty; and we may safely say that the conclusion of a treaty is an exercise of public power. Therefore, the defendant State assumed the responsibility to compensate the damage suffered, in accordance with article 1 of the State Compensation Law,1 to the plaintiffs who lost their claims by the defendant’s illegal act and suffered damage. (2) Also, in the negotiations for conclusion of the Peace Treaty, the claims for damages by the atomic bombing must have been evaluated high, and such claims should be understood to have been appropriated to part of Japanese compensation in restitution of the United States. Japan must have profited in other aspects of the Peace Treaty by waiving the claims. Even if there were no express diplomatic negotiations, the conscience of the United States and the people of the world necessarily inserted the claims in the balance sheet of the Peace Treaty, and with this expectation the defendant State intentionally waived the claims. Therefore, by waiving the plaintiffs’ claims for damages against the United States, and President Truman, the defendant State should be regarded as having appropriated private properties of the plaintiffs for public use; and the defendant State is obliged to pay just compensation to the plaintiffs in accordance with article 29 of the Japanese Constitution.2
(3) Assuming that claims for damages do not directly arise in accordance with the above provision of the Constitution, and that the plaintiffs have no special claims for damages by reason of legal measures on compensation, the plaintiffs have claims for damages of the same content against the defendant. In spite of waiver of the plaintiffs’ claims for damages without compensation by the conclusion of the Japanese Peace Treaty, the defendant State has not taken any measure of compensation and therefore infringes on the rights of the plaintiffs. Therefore, it goes without saying that since this constitutes an illegal act, the defendant State assumes responsibility for paying damages to the plaintiffs. (4) The defendant State alleges that even if the claims were waived by article 19 of the Japanese Peace Treaty, the plaintiffs have no claims for damages against the defendant State. As reasons, the defendant State mentions that the plaintiffs’ claims are not legal questions and are abstract questions, that the claims were destined to be necessarily waived by the defeated country on conclusion of the Peace Treaty, that they do not qualify as a property right under the Constitution, and that article 29 of the Constitution does not directly provide for claims for compensation against the state but only provide that concrete measures of compensation shall be made by laws and regulations on expropriation. However, with regard to the existence of the claims, what the defendant State alleges is only the relations of various powers, and the existence of the claims themselves is not influenced by them. It is also wrong to say that the claims for compensation do not arise unless concrete, legal measures are taken as to compensation. For, the purpose of inviolable property right can be attained by inseparably providing for use or expropriation and the measure of compensation before the actual use or expropriation is made. In the case of article 19(a) of the Japanese Peace Treaty, there was no room for enacting the law on expropriation, since the property of Japanese nationals was appropriated and expropriated as indemnification for damage to the United States simultaneously with the conclusion of the Peace Treaty. Thus, if the defendant State can deny compensation by reason of lack of a law pertaining to compensation, while it takes unilaterally people’s private property for public use, that is no better than confiscation and is far from the respect of human rights which is a fundamental idea of the Japanese Constitution. (5) Further, the defendant State alleges that the way of consolation of sufferers of the atomic bombing must be determined by taking into consideration the financial conditions of the State as well as the consolation to other general war victims, and that since the question whether a measure for consolation should be taken in legislation and in finance is not a legal question but a political question, the defendant State has no obligation for compensation or indemnification to the plaintiffs at the present time when such measures have not been taken in legislation. As stated above, however, the claim for damages in this case is based on the municipal laws of Japan and the United States, and on international law; and it is not a political question. The plaintiffs desire that the Japanese Government take proper measures promptly in legislation and finance, but such measures should be taken after strict confirmation of the claims of the sufferers against the defendant State and that they are different from groundless relief. In view of the fact that the damage caused by the atomic bomb is the cruelest damage, as some people say treason to mankind, compensation or indemnification for damage should be placed in the first consideration; and that is not impossible in the present financial conditions of the defendant State. 7. Damage of the plaintiffs.
(1) The plaintiff, Ryuichi Shimoda was a healthy man, 47 years old when the atomic bomb was dropped on Hiroshima. He lived with his family at No. 945, Nakahiro-machi, Hiroshima, and ran a small factory. His eldest daughter, Reiko (16 years old then), his third son, Kiyoshi (12 years old then), his second daughter, Yuriko (10 years old then), his third daughter, Kazue (7 years old then) and his fourth daughter, Toshiko (4 years old then) were killed by the atomic bomb. The plaintiff, his wife, Hina (40 years old then) and his fourth son, Katsuji (2 years old then) were injured by bomb-shell blast, heat ray, and radial rays. The plaintiff now has keloid in the right upper arm which is functionally disordered, and he also has keloid over the abdominal region and the left back which suppurates in the mild season of every spring. Also, he has physical handicap in the kidney and liver, and he cannot find employment at the present time. His wife, Hina, is suffering from a feeling of languor in the whole body, a feeling of adynamia, and headaches. There sometimes appear symptoms of potential atomic bomb injury to his fourth son, Katsuji. On account of this situation, the family has no income and they barely live by the help of a little money and a few things sent monthly by the plaintiff’s elder sister in Honolulu, Hawaii, the United States. (2) The plaintiff, Maki Tada, resided at No. 2-262, Minami-machi, Hiroshima, when the atomic bomb was dropped, and lived a healthy and happy life with her husband who was an employee of Hiroshima Dentetsu Kabushiki Kaisha (Hiroshima Electric Railway Inc.). She was injured on the face, shoulders, chest and feet, and keloid is left in them. She has pains in her body even at the present time, and cannot continue working at daily wages. As her husband left home, disliking her disfigured looks, and has been missing ever since, she lives a miserable life with the help of government livelihood assistance. (3) The plaintiff, Suji Hamabe, 54 years old when the atomic bomb was dropped on Nagasaki; lived alone from about May, 1944 at No. 54, Shirogane Saru-machi, Shiba, Tokyo, and worked at the head office of Mitsubishi Jukogyo Kabushiki Kaisha (Mitsubishi Heavy Industry Inc.), separated from his family who lived at No. 1-14, Shiroyama-machi, Nagasaki. However, the result was most tragic in human life in that all his family, his wife, Hana (48 years old then), his second daughter, Taeko (22 years old then), his third daughter, Noriko (19 years old then), his fourth daughter, Ryoko (16 years old then) and his fifth daughter, Tsuneko (14 years old then), were all killed by the atomic bomb, and that he alone survived. (4) The plaintiff, Bunji Iwabuchi, resided with his family at No. 145, Nobori-cho, Hiroshima, but he and his wife, Fujino, were running a manufacturing industry of oil from root of pine at Yuno-mura, Saba-gun, Yamaguchi Prefecture when the atomic bomb was dropped on Hiroshima. Consequently, his adopted daughter, Toyoko (24 years old then), her husband, Kazutaka (26 years old then), and their first son, Kuniaki (1 year old then) were killed by the atomic bomb. The plaintiff and his wife, Fujino, alone survived and live the rest of their hopeless life at their relative’s house which is located at their address. (5) The plaintiff, Tochiko Kawashima, was 14 years old when the atomic bomb was dropped on Hiroshima. She lived a healthy life with her parents, brothers, and sisters at 2-chome, Minami-machi, Hiroshima. She was injured in the face and the left arm owing to the collapse of her house by bomb-shell blast, and scars still remains. Her father, Ototsuchi (50 years old then), who worked at the Public Food Corporation at Hatchobori, Hiroshima, and her mother, Kimiyo (40 years old then), who served at the neighborhood association, were injured by bomb-shell blast, heat rays, and radial rays. After medical treatment in a hospital in vain her mother died on July 8, 1946, and following his wife her father died on the 20th of November in the same year. The young bereaved family including the plaintiff, who lost their parents, sold all their clothes and other personal effects for food and became unable to make a living. Consequently, they are now living such a sad life that the sisters are forced to live separately with relatives, and the plaintiff’s younger sister, Choko, has been adopted into a relative’s family. 8. Claims for damages.
(1) The plaintiff, Ryuichi Shimoda, here claims against the defendant State the payment of 300,000 yen and interest thereon at the rate of 5% per annum from May 24, l955, the day following service of process in this suit, until paid in full, as solatium for the extremely sorrowful, mental pain suffered by the death of a son and four daughters resulting from the bombing, and for property damage and mental pain resulting from injuries to the plaintiff himself. (2) The plaintiff, Maki Tada, claims the payment of 200,000 yen and interest as in the previous paragraph, as solatium for property damage and indescribable agony resulting from injury. (3) The plaintiff, Suji Hamabe, claims the payment of 200,000 yen and interest as in the paragraph (1), as solatium for the extremely sorrowful, mental pain suffered by the death of his wife and four children from the bombing. (4) The plaintiff, Bunji. Iwabuehi, claims the payment of 200,000 yen and interest thereon at the rate of 5% per annum from May 25, 1955, the day following service of process in this suit, until paid in full, as solatium for the extremely sorrowful, mental pain suffered by the death of his family members from the bombing. (5) The plaintiff, Tochiko Kawashima, claims the payment of 200,000 yen and interest as in the previous paragraph, as solatium for property damage and agony resulting from injury and mental Paul resulting from the death of her parents.
IV Defendant State’s answer.
1. The atomic bombing and its effect.
The defendant State admits the fact, as the plaintiffs allege, that so-called atomic bombs were dropped on Hiroshima and Nagasaki by bombers of the U.S. Army Air Forces, and that a large number of people were killed by the explosion of the atomic bombs. However, the number of the killed and wounded exclusive of the military personnel was as shown in Exhibit II below, according to the investigation of May, 1948 made by the Economic Stabilization Board. 2. International law aspects.
It is difficult to conclude that atomic bombing is necessarily contrary to international law. (1) Atomic weapons as a means of injuring the enemy by harnessing energy from nuclear fission, were invented in the latter half of World War II; and they were generally unknown to mankind until used at Hiroshima and Nagasaki. Accordingly, since there was neither a treaty prohibiting or permitting the use of atomic weapons to injure the enemy, nor an international customary law pertaining to such new weapons at that time, we should say that positive international law respecting atomic weapons did not exist; and therefore the question of violation of positive international law cannot arise. Since the Hague Regulations respecting the Laws and Customs of War on Land, and other treaties as mentioned by the plaintiffs, do not originally make the atomic bomb their object, we cannot put an expansive construction on their intent. Further, since neither the Draft Rules of Air Warfare nor the Treaty respecting Prevention and Punishment of Genocide, was concluded as a treaty at the time when the atomic bombs were dropped, we cannot recognize such treaties as positive law and cannot make them the source of international law. (2) Therefore, the question whether atomic bombing is contrary to international law should be decided in the light of legal principles of international law in time of war. From the viewpoint of international law, war is originally the condition in which a country is allowed to exercise all means deemed necessary to cause the enemy to surrender, in other words, to force the enemy to accept the condition proposed by the adversary and to determine to sue for peace. The first consideration is to crush the military force of the enemy. However, to destroy the enemy’s economic power as a means of continuing battle, and to foster defeatism among the people of the enemy can also effectively hasten the surrender of the enemy; and necessary means may be exercised to attain these purposes. Since the Middle Ages, belligerents, in international law, have been permitted to choose the means of injuring the enemy in order to attain the special purpose of war, subject to certain conditions imposed by international customary law and treaties adapted to the times. The atomic bombs dropped on Hiroshima and Nagasaki were exceedingly enormous in destructive power, and the damage was heaviest in history. It is truly a matter of deep regret that a large number of non-combatant Japanese people were killed and wounded as a consequence. However, with the atomic bombing of Hiroshima and Nagasaki, as a direct result, Japan ceased further resistance and accepted the Potsdam Declaration. Thus, the purpose of Japanese unconditional surrender was attained as the Allied Powers intended; and World War II came to an end. Thus, the use of atomic bombs hastened the Japanese surrender, and resulted in the prevention of casualties of human life of both belligerents which would be caused by the continuance of war. Taking an objective view of these circumstances, no one can easily conclude whether the atomic bombing of Hiroshima and Nagasaki was contrary to international law. Also, since no international agreement prohibiting the use of nuclear weapons had been concluded yet, we think that we cannot decide readily on the propriety of the use of an atomic bomb as a means of injuring the enemy in time of war. (3) The Japanese Government issued, on August 10, 1945, through the Government of Switzerland, an official note in which it strongly demanded that the Government of the United States stop the use of atomic weapons instantly. The content of the official note is as alleged by the plaintiffs. Such note was, however, the assertion as a belligerent that the use of a new-type bomb is contrary to principles of international law and to the fundamental principles of humanity, but taking an objective view, apart from the position of a belligerent, we cannot necessarily draw the same conclusion today. 3. Municipal law aspects. The act of atomic bombing may be covered by international law, but is not covered by municipal law by nature. (1) War is a means of settling disputes of interest between sovereign states, and a state conducts a war for the benefit of the state itself and the people. Therefore, the legality of individual acts which compose such a war should be treated exclusively by international law, and responsibility for acts deemed illegal should be solved by agreement between the countries concerned. A country does not assume responsibility of compensation for damage resulting from illegal acts directly inflicted on the people of the other country, in accordance with municipal law. (2) In the municipal law of the United States, it is understood as a limit of judicial power that the court shall deny judicial review of the exercise of important political power and entrust the matter to the judgment of the executive branch. The use of the atomic bomb by Truman President of the United States, was aimed at the military and political effect of the atomic bomb as a means of winning the war, and this is excluded from a judgment of illegality by a court. This necessarily results from the theory called Act of State. (3) Assuming that the municipal law of the United States applies to the act of atomic bombing, there was at the time a legal principle of State Immunity in the United States, which resembles the principle of Legal Immunity of the Crown in English law. If a public servant of the federal government or of a state government commits a tort in the performance of official duties, the victim may not claim damages against the federal government, the state government, or the public servant. (4) As alleged by the plaintiffs, it is not possible to establish a tort under Japanese law by applying the conflict of law rules of the United States. Viewed in the light of the conflict of laws, in principle a country denies the application of a foreign law if the application is contrary to the interest of the country. However, since the state and its public servants do not assume responsibility under the laws of the United States, the lex fori, in principle the lex fori applies cumulatively to that extent. 4. The sufferers’ claims for damages. The plaintiffs’ claims for damages against the United States must be denied, since it is difficult to say that atomic bombing is contrary to international law. Even if the premise of the plaintiffs is recognized, however, it does not follow that the plaintiffs have claims for damages. (1) It is the United States which must compensate the damage resulting from the atomic bombing, but it is the State of Japan and not the individual plaintiffs who are qualified to claim damages against the United States. The reasons are that individuals cannot be the subject of rights in international law, and that, although there are some cases where individuals are the subject of international law as expounded by some doctrines, they are limited to the case where there is a provision to that effect in a treaty or other international law, or where the right of access to the International Court of Justice is granted the individual. Accordingly, at the present time, when there is not such a provision in general international law respecting war, and when no individual is granted the right of access to the International Court of Justice, there is no reason why the claims for damages as a right in international law arise to the plaintiffs. In case of such a violation of international law, the country to which the sufferers belong exercises the claim for damages against the country which caused damage. The claim in this case is not exercised by the country on behalf of the individual sufferers, but exercised by the country itself as its own right. If the country receives compensation as the result of exercising the claims, the distribution of compensation to the sufferers, and the amount of distribution, are decided by the country independently by its own authority. (2) Even if the claims for damages were acquired by the plaintiffs for some reason, the claims must be abstract ones which have no possibility of realization. Since a plaintiff’s claim is in international law, it should be realized by diplomatic negotiations first, and if the negotiations fail, it should be realized by access to the International Court of Justice. We must say, however, that since an individual citizen has no authority for diplomatic negotiations or the right of access to the International Court of Justice, he has no means or possibility to realize the claim as a right. Therefore, even if he has such a right, it does not come to an actual issue until the other country recognizes the right in a peace treaty and a concrete agreement is made. It is rather a right originating in the peace treaty itself, and it is outside the question of law as long as a concrete agreement is not made. Furthermore, there is no example in history where a defeated country has claimed against a victor country, compensation for damage resulting from acts of violation of international law by the latter, and where the claim has been realized. It is a long-standing international custom that, even the victor country only claims compensation of a certain amount of money, or of certain utilities and construction services in accordance with the peace treaty. Therefore, we must say that even if the claims as alleged by the plaintiffs existed, they were destined to be necessarily extinguished with the conclusion of the Peace Treaty. 5. Waiver of the claims in accordance with the Japanese Peace Treaty. It does not follow that Japan waived its individual citizens’ claims for damages against the United States and President Truman in accordance with the provisions of article 19(a) of the Japanese Peace Treaty. (1) It is the right of a state to negotiate with foreign countries on the basis of its individual citizens’ claims for damages in international law, and there is no doubt that a state can waive this right by agreement with foreign countries. However, since an individual citizen’s right to claim damages directly against a foreign country independently without the medium of his home government is different from the right of the state, it is not directly influenced by whatever agreement the state concludes with foreign countries by treaty. (2) Therefore, it should be understood that the “claims of Japanese nationals” provided for in article 1(a) of the Japanese Peace Treaty only means claims for damages by the State of Japan on the basis of the nationals’ own claims, that is, the so-called right of diplomatic protection. Japan can agree with another country that it will take necessary legislative and executive measures to prohibit its nationals from exercising their claims against the Allied Powers and their nationals. However, since the extinction clauses of claims and the compensation clauses substituted for the former as provided for in the peace treaty with Italy and five other countries are not provided for in the Japanese Peace Treaty, we cannot say that even such individual citizens’ claims were waived. Even if article 19(a) of the Japanese Peace Treaty can be interpreted to have the intent to include the above individual citizens’ claims, it amounts to no more than a statement that Japan waived what could not be waived, and the citizens’ own claims are not extinguished by the statement. Therefore, if the plaintiffs had claims, it does not follow that the plaintiffs had rights infringed, since the claims were not waived in accordance with the Japanese Peace Treaty. 6. The defendant State’s responsibility for the Waiver of claims.
(1) The defendant State has no obligation for assuming responsibility for damages in accordance with the State Compensation Law. Since plaintiffs’ claims were not worthy of a right by nature, and were destined to be waived by the defeated country on the conclusion of the Peace Treaty, the conclusion of the Japanese Peace Treaty did not result in the infringement of rights. Also, even if the contents of the Peace Treaty are out of keeping with the system of municipal law, the treaty itself cannot be regarded illegal. If a defeated country cannot conclude a peace treaty, because the peace treaty would be contrary to the prohibition clause of the constitution of the defeated country, or because legal procedures in the constitution cannot be taken, a defeated country could never conclude peace and consequently it would be required to continue the war as long as the capacity of conduct of war remains. Therefore, with regard to a peace treaty, even if there is doubt as to constitutionality, it is considered that the courts and the other state organs must recognize it as an accomplished fact like a revolution; that the power of conclusion of a treaty in time of war is not restricted by the constitution, on the theory of emergency of the state; and that a peace treaty is supreme over various powers in the constitution in application, on the theory of superiority of international law over municipal law. In the Japanese Peace Treaty, the position of the defeated country, Japan, is not different from the above. Since the Japanese Peace Treaty is an international agreement which Japan, who surrendered unconditionally by accepting the Potsdam Declaration, “desired by force,” in order to recover its independence, we cannot hold the treaty illegal even if there are provisions affecting the people’s rights guaranteed by the Japanese Constitution. (2) Even if the plaintiffs had the claims as alleged, and the claims were waived in accordance with article 19(a) of the Japanese Peace Treaty, it does not follow that a claim for compensation by the Japanese Government arises in accordance with article 29 of the Constitution. Article 29 of the Constitution does not directly grant the people a concrete claim for compensation; and this does not become possible until a concrete provision is made by the law respecting the matter concerned, that the people have a concrete claim for compensation against the State. In other words, the Constitution only orders that, when the State uses or expropriates private properties for public interest, the State should provide concretely the measure of compensation therefor; and it does not follow that the Constitution directly grants the people a concrete claim. Therefore, if the law provides that the State can use or expropriate private properties without preparing a measure of compensation, there are some cases where the law is made null and void as unconstitutional, but the people whose property was used or expropriated may not claim compensation against the State directly in accordance with the provisions of the Constitution. Also in this case, we do not think that the plaintiffs are entitled to claim compensation directly in accordance with the Treaty or the Constitution. (3) The defendant State is unstinting in its deep sympathy with those who felt the explosion of the atomic bombs in the late war, which mankind had never before experienced. However, the way of consolation for these people must be balanced with the consolation for other general war victims, and by taking into due consideration the actual circumstances of finance of the State, etc. Whether measures should be taken in legislature and in finance is not a legal question, but a political question. This is the same as where the State receives indemnity from another country by exercising the right of diplomatic protection, and where the State can decide independently by its authority whether it will distribute the indemnity to the sufferers and also the method of distribution. Although the matter can thus be a question of domestic policy or of legislation, it does not follow that sufferers necessarily acquire claims for compensation Therefore, at the present time while such measures have not been taken up by the legislature, the defendant State has no obligation to compensate or indemnify the plaintiffs; and the plaintiffs cannot immediately regard the lack of such measures as an illegal act in civil law. 7. Damage of the plaintiffs.
1. Atomic bombing and its effect.
(1) There is no dispute between the parties about the following facts. Around 8:15 a.m. on August 6, 1945, a B-29 bomber piloted by Colonel Tibbetts, U.S. Army Air Forces, dropped a uranium bomb on Hiroshima under the orders of U.S. President H.S. Truman, and around 11:02 a.m. on the 9th of the same month, a B-29 bomber piloted by Major Sweeney, U.S. Army Air Forces, dropped a plutonium bomb on Nagasaki under the orders of U.S. President Truman. These bombs (hereinafter referred to as “atomic bombs”) exploded in the air. A furious bomb-shell blast with a flash, and both in Hiroshima and in Nagasaki almost all buildings in the cities collapsed. Simultaneously, fire broke out everywhere; and all people who were within a radius of some four kilometers of the epicenter were killed in an instant without distinction of age or sex. A large number of people elsewhere were burned on the skin by the flash, and others, bathed with the radiant rays, suffered from so-called atomic bomb injury. The number of killed and wounded, to say the least, amounted to more than 70,000 and 50,000 respectively, in Hiroshima, and to more than 20,000 and 40,000 respectively, in Nagasaki. (2) Then, what is the explosion of an atomic bomb? This question is made clear theoretically without any room for doubt, and there are many results of experiment, which are collected into materials by scientists for everyone’s use. We will state the principle in brief as follows, by virtue of the “Effect of Nuclear Weapon” by Samuel Glaston (published by the U.S. Atomic Energy Commission). (Handbook of Genshiryoku, Bakudan-hen, in Japanese translation.) When a free neutron enters into a atomic nucleus of uranium No. 235 or plutonium No.239, the atomic nucleus is divided in two, and at that moment a large quantity of energy is discharged. Simultaneously, discharged by the reaction of that nuclear fission, more than two neutrons enter into the next atomic nucleus of uranium No. 235 or plutonium No. 239 and cause the reaction of nuclear fission. The neutrons discharged by this second nuclear fission cause the next reaction similarly, and if there is a large quantity of neutrons the reaction of nuclear fission is caused one after another like a chain. In the process, part of the neutrons discharged disperse off, or part are lost by the reaction of atomic nucleus which is not nuclear fission. However, since the loss can be diminished relatively by increasing the quantity of uranium No. 235 or plutonium No. 239, or by reflecting neutrons with reflector placed around, the reaction of nuclear fission is caused one after another like a chain by increasing the quantity of uranium No. 235 or plutonium No. 289 to over the critical quantity; the energy is accumulated and the explosion is caused finally. The time before the explosion is caused is very short, and the energy discharged is tremendous. If a pound of uranium No. 235 or plutonium No.239 go into full nuclear fission, energy equivalent to the explosion of a 9,000 ton TNT bomb is produced in less than one second. The bombs dropped on Hiroshima and Nagasaki discharge energy equivalent in quantity to 20,000 tons of TNT bombs, but at the present time far stronger weapons which have the energy of megaton class, appear. (3) Next, we will state in brief the effect caused by the explosion of atomic bombs by virtue of the above-mentioned book. The first effect comes from the bomb-shell blast. When an atomic bomb explodes in the air, a fire ball composed of gas of very high temperature and very high pressure arises at once and goes up engulfing the surrounding air. From the fire ball, a wave of air (wave from bombardment) of high temperature and high pressure is pushed up at once, and spreads in all directions quickly. When the wave reaches the earth, it destroys buildings and other structures as if an earthquake or typhoon occurred. The range of the effect is very wide. In Nagasaki, houses within 1.4 miles from the epicenter collapsed, those within 1.6 miles suffered rather heavy damage, and even those at the point of 1.7 miles had their roofs and walls damaged. The second effect comes from the heat rays. When a fire ball is made by the explosion of an atomic bomb in the air, it begins to radiate heat rays composed of heat of high temperature and light. The heat rays include ultraviolate rays as well as visible rays and ultrared rays. The heat rays reach the earth at the same speed as light, set fire to inflammable things on the earth, burn the skin, and cause man’s death according to the conditions. In Hiroshima and Nagasaki, 20% to 30% of those killed are presumed killed by burns; and in Nagasaki burns from the heat were recorded as far as 2.5 miles from the epicenter. While the effect of an ordinary high efficient bomb (TNT bomb) is chiefly destruction by bomb-shell blast, the atomic bomb singularly possesses thc effect of fire and burn by heat rays, together with destruction by bomb-shell blast. The third and most peculiar effect comes from the first stage of nuclear radial rays and residual nuclear radioactivity. The radial rays which are radiated within one minute after the explosion of an atomic bomb are composed of neutron, gamma rays, alpha particles and beta particles; and they are called the first stage of nuclear radial rays. Among them, gamma rays and neutron have a flying leg of long range, and, when striking against the human body, they destroy or injure the cells and cause atomic disease (atomic bomb injury) by injury from radial rays. Atomic disease weakens the whole human body, and causes man’s death several hours or weeks later; and if he fortunately saves his life a long term is required before his recovery. Also, the radiation of the first stage of nuclear radial rays causes leukaemia, cataract, and abortion of child, has various bad influences on various organs of the human body, and causes hereditarily bad influences. The radial rays which are radiated chiefly from splinters of the bomb one minute after the explosion, are called the residual nuclear radial rays. These splinters spread wide in the air in the form of corpuscle, cause a radioactive rainfall by sticking to water drops, and flutter down to the earth in the form of the so-called ashes of death. The effect of radial rays on the human body is almost the same as that of the first stage of nuclear radial rays. (4) Thus, one atomic bomb, even a small-scale bomb like the bombs dropped on Hiroshima and Nagasaki, discharges energy equivalent to a 20,000 ton TNT bomb; and the power of destruction and effect of casualty by the bomb-shell blast are so remarkable that it cannot for a moment be compared with bombs of the past. Moreover, the power of destruction by the bomb-shell blast is only a part (some 50% of the energy) of the efficiency of atomic bomb; and the effect of incendiary and of casualty by heat rays (some 35% of the energy) has singularity which is not seen in a TNT bomb. We can see the strong power in that 20% to 30% of the deaths in Hiroshima and Nagasaki are presumed to result from burns. However, what strikes us with more terror is the radial rays or radioactivity caused by the atomic bomb; and we have already experienced the terror of atomic disease, leukaemia and various other injuries to the human body, which are caused by radial rays or radioactivity. Thus, the atomic bomb is far stronger than weapons of the past in power of destruction and casualty. Besides, it has characteristics different from all kinds of weapons of the past in that it inflicts on the human body various kinds of pain and bad influences. We must say that the atomic bomb is a really cruel weapon. 2. International law aspects.
(1) There is no doubt that, whether or not an atomic bomb having such a character and effect is a weapon which is permitted in international law as a so-called nuclear weapon, is an important and very difficult question in international law. In this case, however, the point at issue is whether the acts of atomic bombing of Hiroshima and Nagasaki by the United States are regarded as illegal by positive international law at that time. Therefore, it is enough to consider this point only. (2) As a premise, for, judging bow the above acts of atomic bombing are treated by positive international law, we will begin by considering what international law has existed with regard to war, especially to hostile acts among modern countries since the latter half of 19th Century. The following are the chronological enumeration of international laws concerning this case: 1886. St. Petersburg Declaration respecting the prohibition of the explosives and incendiaries under 400 grammes.
1899. Convention respecting the Laws and Customs of War on Land (CONVENTION CONCERNANT LES LOIS ET COUTUMES DE LA GUERRE SUR TERRE), concluded at the First Hague Peace Conference; and its annex, Regulations respecting the Laws and Customs of War on Land (RÈGLEMENT CONCERNANT LES LOIS ET COUTUMES DE LA GUERRE SUR TERRE.) (the so-called Regulations respecting War on Land).
1899. Declaration concerning expanding bullets (the so-called Declaration prohibiting dum-dum bullets).
1899. Declaration concerning projectiles launched from balloons in the air (the so-called Declaration prohibiting aerial bombardment).
1899. Declaration concerning projectiles diffusing asphyxiating or deleterious gases (the so-called Declaration prohibiting poison gases).
1907. Convention respecting the Laws and Customs of War on Land (CONVENTION CONCERNANT LES LOIS ET COUTUMES DE LA GUERRE SUR TERRE), which was concluded in the Second Hague Peace Conference (the revision of the Convention of the same name in the First Hague Peace Conference).
1907. Declaration prohibiting aerial bombardment.
1922. Treaty of Five Countries concerning submarines and poisonous gases.
1923. Draft Rules concerning Air Warfare (Draft Rules of Air Warfare).
1925. Protocol prohibiting the use in war of asphyxiating, deleterious or other gases and bacteriological methods of warfare (Protocol respecting the prohibition of poison gases, etc.). (3) In the above-mentioned laws and regulations, there is no direct provision with regard to the atomic bomb, a new weapon which appeared during World War II. On the ground of this fact the defendant State alleges that the question of violation of positive international law does not arise, since there was neither international customary law nor treaty law prohibiting the use of atomic bombs at that time, and the use is not prohibited clearly by positive international law. Of course, it is right that the use of a new weapon is legal, as long as international law does not prohibit it. However, the prohibition in this case is understood to include not only the case where there is an express provision of direct prohibition but also the case where it is necessarily regarded that the use of a new weapon is prohibited, from the interpretation and analogical application of existing international laws and regulations (international customary laws and treaties). Further, we must understand that the prohibition includes also the case where, in the light of principles of international law which are the basis of the above-mentioned positive international laws and regulations, the use of a new weapon is admitted to be contrary to the principles. For there is no reason why the interpretation of international law must be limited to grammatical interpretation, any more than in the interpretation of municipal law. (See Expert Opinions of K. Yasui (Kaoru Yasui), S. Tabata (Shigejiro Tabata), and Y. Takano (Yuichi Takano).) (4) There is also an argument that a new weapon is not an object of regulation of international law at all, but such argument has not a sufficient ground as mentioned above. It is right and proper that any weapon contrary to the custom of civilized countries and to the principles of international law, should be prohibited even if there is no express provision in the laws and regulations. Only where there is no provision in the statutory [international] law, and as long as a new weapon is not contrary to the principles of international law, can the new weapon be used as a legal means of hostility. Against this argument, some argue as follows. Although there are always many objections in every field against the invention and use of new weapons. They are soon regarded as advanced weapons, and the prohibition of the use of such weapons becomes altogether nonsensical. With the progress of civilization, a new weapon comes to be rather an efficient means of injuring the enemy. This is as shown in history, and the atomic bomb is not an exception. We cannot deny that in the past, although objections were made by various interests against the appearance of a new weapon because international law was not yet developed, or a hostile feeling was strong against the people of the enemy or pagons, or the advance of general weapons was gradual, new weapons nevertheless came to be regarded as legal with the later advancement of civilization and the development of scientific techniques. This, however, is not always true. This will be clear from the recollection of the existence of the above-mentioned treaties prohibiting the use of dum-dum bullets and poisonous gases. Therefore, we cannot regard a weapon as legal only because it is a new weapon, and it is still right that a new weapon must be exposed to the examination of positive international law.
(5) Next, we will examine the international laws and regulations concerned at that time, with regard to the act of atomic bombing. First of all, there arises the question whether the act of atomic bombing is admitted by the laws and regulations respecting air raids, since the act is an aerial bombardment as a hostile act by military plane. No general treaty respecting air raids has been concluded. However, according to customary law recognized generally in international law with regard to a hostile act, a defended city and an undefended city are distinguished with regard to bombardment by land forces, and a defended place and an undefended place are distinguished with regard to bombardment by naval forces. Against the defended city and place, indiscriminate bombardment is permitted, while in the case of an undefended city and place, bombardment is permitted only against combatant and military installations (military objectives) and bombardment is not permitted against non-combatant and non-military installations (non-military objectives). Any contrary bombardment is necessarily regarded as an illegal act of hostility. (See Expert Opinion of Shigejiro Tabata.) This principle is clear from the following provisions: Article 25 of the Hague Regulations respecting War on Land provides that “the attack or bombardment, by any means whatever, of towns, villages, habitations, or buildings, which are not defended, is prohibited.” “The Convention concerning bombardment by naval forces in time of war” (CONVENTION CONCERNANT LE BOMBARDMENT PAR DES FORCES NAVALES EN TEMPS DE GUERRE), adopted at the Hague Peace Conference of 1907, provides in article 1 that “the bombardment of undefended ports, towns, villages, dwellings, or other buildings by naval forces is prohibited…,” and in article 2 that “among the above-mentioned objects against which bombardment is prohibited are not included military works, military or naval establishments, depots of arms or war material, workshops or plants which could be utilized for the needs of a hostile fleet or army, and men-of-war in the harbor…”
(6) With regard to air warfare, there are “Draft Rules of Air Warfare.” Article 24 of the Draft Rules provides that: “(1) Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent. (2) Such bombardment is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots; factories constituting important and well-known centers engaged in the manufacture of arms, ammunition, or distinctively military supplies; lines of communication or transportation used for military purposes. (3) The bombardment of cities, towns, villages, dwellings, or buildings not in the immediate neighborhood of the operations of land forces is prohibited. In cases where the objectives specified in paragraph (2) are so situated that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment. (4) In the immediate neighbourhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings, or buildings is legitimate, provided there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population….” Further, article 22 provides for that “aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of military character, or of injuring non-combatants, is prohibited.” In other words, this Draft Rules of Air Warfare prohibit useless aerial bombardment and provide for the principle of military objective first of all. Then, together with that, the Draft Rules distinguish between places in the immediate neighborhood of the operations of land forces and other places, and provide that indiscriminate aerial bombardment against the former is permitted but that against the latter the aerial bombardment of military objectives only is permitted. In these provisions, stricter expressions are used than in the case of bombardment by land and naval forces, but what tbey mean is understood to be the same as the distinction between the defended city (place) and undefended city (place). The Draft Rules of Air Warfare cannot directly be called positive law, since they have not yet become effective as a treaty. However, international jurists regard the Draft Rules as authoritative with regard to air warfare. Some countries regard the substance of the Rules as a standard of action by armed forces and the fundamental provisions of the Draft Rules are consistently in conformity with international laws and regulations, and customs at that time. Therefore, we can safely say that the prohibition of indiscriminate aerial bombardment on an undefended city and the principle of military objective, which are provided for by the Draft Rules, are international customary law, also from the point that they are in common with the principle in land and sea warfare. Further, since the distinction of land, sea, and air warfare is made by the place and purpose of warfare, we think that there is also sufficient reason for existence of the argument that, regarding the aerial bombardment of a city on land, the laws and regulations respecting land warfare analogically apply since the aerial bombardment is made on land.
(7) Then, what is the distinction between a defended city and an undefended city? Generally speaking, a defended city is a city resisting any possible occupation attempt by land forces. A city which is far distant from the battlefield, and is not in pressing danger of the enemy’s occupation, even if there exist defensive installations or armed forces, cannot be said to be a defended city, since there is no military necessity of indiscriminate bombardment; and in this case the bombardment and aerial bombardment only against military objectives is admitted. On the contrary, against a city resisting a possible occupation attempt by the enemy, indiscriminate bombardment is permitted out of military necessity, since an attack made upon the distinction between military objective and non-military objective has little military effect and cannot accomplish the expected purposes. Thus, we can say that it is a long-standing, generally recognized principle in international law respecting air raids, that indiscriminate aerial bombardment is not permitted on an undefended city and that only aerial bombardment on military objective is permitted. (Expert Opinions of Shigejiro Tabata and Yuichi Takano.) Of course, it is naturally anticipated that the aerial bombardment of a military objective is attended with the destruction of non-military objectives or casualty of non-combatants; and this is not illegal if it is an inevitable result accompanying the aerial bombardment of a military objective. However, it necessarily follows that in an undefended city, an aerial bombardment directed at a non-military objective, and an aerial bombardment without distinction between military objectives and non-military objectives (the so-called blind aerial bombardment) is not permitted in the light of the above-mentioned principle. (See Expert Opinion of Shigejiro Tabata.) The power of injury and destruction of the atomic bomb is tremendous as already stated, and even such small-scale atomic bombs as those dropped on Hiroshima and Nagasaki discharge energy equivalent to a 20,000-ton TNT bomb in the past. If an atomic bomb of such power of destruction once explodes, it is clear that it brings almost the same result as complete destruction of a middle-size city, to say nothing of indiscrimination of military objective and non-military objective. Therefore, the act of atomic bombing on an undefended city, setting aside that on a defended city, should be regarded in the same light as a blind aerial bombardment; and it must be said to be a hostile act contrary to international law of the day.
(8) It is a well-known fact that Hiroshima and Nagasaki were not cities resisting a possible occupation attempt by land forces at that time. Further, it is clear as stated above that both cities did not come within the purview of the defended city, since they were not in the pressing danger of enemy’s occupation, even if both cities were defended with anti-aircraft guns, etc. against air raids and had military installations. Also, it is clear that some 330,000 civilians in Hiroshima and some 270,000 civilians in Nagasaki maintained homes there, even though there were so-called military objectives such as armed forces, military installations, and munitions factories in both cities. Therefore, since an aerial bombardment with an atomic bomb brings the same result as a blind aerial bombardment from the tremendous power of destruction, 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.
(9) Against the above conclusion, there is a counter-argument that the war of the day was the so-called total war, in which it was difficult to distinguish between combatant and non-combatant, and between military objective and non-military objective, and that the principle of military objective was not necessarily carried through during World War II. The concept of military objective is prescribed in various expressions by the above-mentioned treaties, but the content is not always fixed and changes with time. It is difficult to deny that the scope is gradually spreading under the form of total war. For all the above reasons, however, we cannot say that the distinction between military objective and non-military objective has gone out of existence. For example, schools, churches, temples, shrines, hospitals and private houses cannot be military objectives, however total the war may be. If we understand the concept of total war to mean that all people who belong to a belligerent are more or less combatant, and all production means production injuring the enemy, there arises the necessity to destroy the whole people and all the property of the enemy; and it becomes nonsensical to distinguish between military objective and non-military objective. However, the advocacy of the concept of total war in recent times has the intent of pointing out the fact that the issue of a war is not decided only by armed forces and weapons, but that the other factors, that is to say, chiefly economic factors like source of energy, materials, productive capacity of industry, food, trade, etc., or human factors like population, man-power, etc., have a far-reaching control on the war method and war potential. The concept of total war is not advocated in such a vague meaning as stated above, and there was no actual example of such situation. Accordingly, it is wrong to say that the distinction between military objective and non-military objective has gone out of existence because of total war. (See Expert Opinions of Shigejiro Tabata and Yuichi Takano.) (10) During World War II, aerial bombardment was once made on the whole place where military objectives were concentrated, because it was impossible to confirm an individual military objective and attack it where munitions factories and military installations were concentrated in comparatively narrow places, and where defensive installations against air raids were very strong and solid; and there is an opinion regarding this as legal. Such aerial bombardment is called the aerial bombardment on an objective zone, and we cannot say that there is no room for regarding it as legal, even if it passes the bounds of the principle of military objective, since the proportion of the destruction of non-military objective is small in comparison with the large military interests and necessity. However, the legal principle of the aerial-bombardment on an objective zone cannot apply to the city of Hiroshima and the city of Nagasaki, since it, is clear that both cities could not be said to be places where such military objectives concentrate.
(11) Besides, the atomic bombing on both cities of Hiroshima and Nagasaki is regarded as contrary to the principle of international law that the means which give unnecessary pain in war and inhumane means are prohibited as means of injuring the enemy. (See Expert Opinion of Shigejiro Tabata.) In the argument of this point, it goes without saying that such an easy analogy that the atomic bomb is necessarily prohibited since it has characteristics different from former weapons in the inhumanity of its efficiency, is not admitted. For international law respecting war is not formed only by humane feelings, but it has as its basis both military necessity and efficiency and humane feelings, and is formed by weighing these two factors. With regard to this point, the doctrine mentions as its type the provision in the St. Petersburg Declaration of 1886, which prohibits the use of projectiles under 400 grammes which are either explosive or charged with combustible or inflammable substances, and explains the reason as follows: These projectiles are so small that they have only such a power as to kill and wound one officer or man, but for that effect an ordinary bullet will do, and there is no need to use inhumane weapons which have no more profit. On the other hand, however great the inhumane result of the use of a weapon may be, the use of the weapon is not prohibited by international law, if it has a great military efficiency. The issues in this sense are whether atomic bombing comes within the purview of “the employment of poison or poisonous weapons” prohibited by article 23(a) of the Hague Regulations respecting war on land, and of each forbidden provision of the “Declaration prohibiting each the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases” (DECLARATION CONCERNANT L’INTERDICTION DE L’EMPLOI DE PROJECTILES QUI ONT POUR BUT UNIQUE DE REPANDRE DES GAZ ASPHYXIANTS OR DELETERES) of 1899, and the “Protocol prohibiting the use in war of asphyxiating, poisonous and other gases, and bacteriological methods of warfare” of 1925. With regard to this point, there is not an established theory among international jurists in connection with the difference of poison, poison-gas, bacterium, etc. from atomic bombs. However, judging from the fact that the St. Petersburg Declaration declares that “…considering that the use of a weapon which increases uselessly the pain of people who are already placed out of battle and causes their death necessarily is beyond the scope of this purpose, and considering that the use of such a weapon is thus contrary to humanity…” and that article 23(e) of the Hague Regulations respecting War on Land prohibits “the employment of such arms, projectiles, and material as cause unnecessary injury,” we can safely see that besides poison, poison-gas and bacterium the use of the means of injuring the enemy which causes at least the same or more injury is prohibited by international law. The destructive power of the atomic bomb is tremendous, but it is doubtful whether atomic bombing really had an appropriate military effect at that time and whether it was necessary. It is a deeply sorrowful reality that the atomic bombing on both cities of Hiroshima and Nagasaki took the lives of many civilians, and that among the survivors there are people whose lives are still imperiled owing to the radial rays, even today 18 years later. In this sense, it is not too much to say that the pain brought by the atomic bomb is severer than that from poison and poison-gas, and we can say that the act of dropping such a cruel bomb is contrary to the fundamental principle of the laws of war that unnecessary pain must not be given.
3. Municipal law aspects.
As stated above in detail, the act of atomic bombing was contrary to international law, but it is the next question whether it was contrary to the municipal laws of Japan and the United States of America at the same time. (1) Viewing Japanese law first of all, the prewar Imperial Constitution of Japan at the time when the atomic bombs were dropped, had no express provision with regard to the question what effect international law has in municipal law. However, it was understood that international customary law has its effect in municipal law, and that treaties become effective as municipal law by promulgation. Therefore, there is sufficient room for understanding that the act of atomic bombing is also contrary to municipal law, since it is contrary to international law.
(2) In the United States, it is clear that treaties have the effect as the supreme law of the land in accordance with article 6, paragraph 2 of the Constitution of the United States, and it is understood that international customary law is part of the law of the country. (See Expert Opinion of Shigejiro Tabata.) Such being the case, there seems to be a fair possibility that an act contrary to international law comes to be contrary to municipal law.
(3) However, there is little meaning in the further abstract consideration of the question whether the acts of atomic bombing were contrary to the municipal laws of Japan and the United States. For the existence of the act contrary to municipal law, and the question whether the responsibility for the violation can be placed on some person and before what court the suit can be instituted in order to enforce the responsibility are different questions which must be considered separately. The question in this case is not concretely solved until these points are considered. This point will be commented on later together when the question of responsibility for acts contrary to international law is dealt with. 4. Claims for damages of the sufferers. (1) It is an established principle of international law that when a belligerent causes damage to the other belligerent by illegal acts of hostility in international law, the belligerent must compensate the other belligerent for the damage.
Since it is a well-known fact that the atomic bombing of Hiroshima and Nagasaki was a regular act of hostility taken by an airplane of the U.S. Army Air Forces, and that Japan suffered damage by the atomic bombing, it goes without saying that Japan has a claim for damages against the Unites States in international law. In these cases, however, the person who ordered that act does not assume responsibility as an individual. Accordingly, it is understood that compensation for damage cannot be claimed in international law against U.S. President Truman, who ordered the atomic bombing. It is a principle of international law that the State must directly assume responsibility for acts taken by a person as a state organ, and that the person who holds the position as a state organ does not assume responsibility as an individual. (2) Then, has the individual who suffered damage by the illegal act in international law a claim for damages in accordance with international law against the country which has caused the damage? In the argument of this point, we must first of all consider the question whether an individual can be the subject of rights in international law. Traditional thinking limits the subject of rights in international law to the state, either because international law is the law which regulates the relations of the states, or because international law is formed on the basis of the common consent of the states. However, because international law has regulated chiefly the relations of the state hitherto, it does not necessarily follow that an individual does not become the subject of rights in international law; and the subject of forming international law is not always related to the subject of rights in international law. Further, there is a view that an individual cannot become the subject of rights because international law does not always have effect within a country. This view is, however, not proper, since it is possible in theory for international law to recognize the individual rights even when international law has no effect within a country. Thus, even if we argue the essential qualities of international law, it does not draw out the conclusion that the subject of rights in international law is necessarily limited to a state.
(3) Then, onthe contrary, can the individual always be the subject of rights ininternational law? The standing of the individual in international law does not come to question until international law (chiefly treaties) provides with regard to the rights and duties of the individual. In this case, as doctrine of international law, there are the following two opposing views: One is the view that if only rights and duties are stipulated in international law, the individual acquires certain rights and duties in international law by the existence of the stipulation alone. The other is the view that, unless there is a possibility that the individual can assert his rights and enforce his duties in his name in international law, it cannot be said that he acquires rights and duties in international law. This opposition arises from a difference in understanding the subject of international law and in its turn the general nature of law. Generally speaking, the subject of a right in law is a person, who has the possibility of asserting his rights and of being bound by his duties in his own name. Accordingly, in order for a person to be a subject of a right in international law, there must be the possibility for him to assert his right and be bound by his duties in his name. Therefore, from this viewpoint, the latter of the above two views is right. Next, we will examine the treaties recognizing the standing of the individual in international law in this meaning. As examples in which the individual’s right of instituting suit is directly permitted, we can mention the economic clauses of the Treaty respecting the establishment of the International Prize Court, adopted at the Hague Peace Conference of 1907; the Treaty respecting the establishment of the Central American Court of Justice, concluded by five Central American countries in 1907; and the Versailles Treaty and the other peace treaties after World War I (Treaty of St. Germain-en-Laye, Treaty of Trianon, Treaty of Lausanne and Treaty of Neuilly-sur-Seine). The Treaty respecting the establishment of the International Prize Court was not ratified and did not become a positive international law. Also, it provided for a special court which would have been an organ for appeal in case of dissatisfaction over the examination of the national prize courts. The Treaty respecting the establishment of the Central American Court of Justice was only effective for ten years in five Central American countries. Therefore, these two treaties are not adequate in the consideration of the present general questions. On the other hand, the Versailles Treaty and other peace treaties provided for the establishment of mixed arbitral tribunals to deal with suits concerning property rights of the nationals of the countries involved in World War I. In the case of the Versailles Treaty, nationals of the Allied and Associated Powers were permitted to institute suits before mixed arbitral tribunals directly against the German Government for compensation for damage suffered by their properties, rights, and interests within German territory as a result of the application of extraordinary wartime steps or measures of transfer by the German Government. Moreover, it was stipulated that they could institute suits before mixed arbitral tribunals in their own names entirely independent of the intention of their home governments. Accordingly, in this case, we can say that individuals were the subject of rights in international law. So, there is an argument that, by this example, individuals have generally been the subject of rights in international law; but this argument is not right. The reason is that, in the above case, the object of compensation was limited to damage to properties, rights, or interests within German territory resulting from the wartime application of extraordinary steps or measures of transfer by the German Government, and that the compensation did not cover all damages caused by the conduct of war by Germany. Another reason is that the above claim for damages was limited to nationals of the Allied and the Associated Powers, and nationals of the defeated countries did not have the right to bring action. Further, the mixed arbitral tribunals were ad hoc tribunals established individually by each victor country and Germany. The most important thing is that, they were all stipulated by and based on concrete treaties as stated above. Therefore, it is not enough to say on such ground that the rights of individuals in international law have been generally recognized, and that the procedure of asserting such rights in international law has been guaranteed. It is still proper to understand that individuals are not the subject of rights in international law, unless it is concretely recognized by treaties as seen in the above example of mixed arbitral tribunals.
(4) The plaintiffs allege that an individual has a claim in International law, since the right of the individual is exercised by the home government. However, if the purport is that the state exercise the right in international law in the citizen’s name as his agent for his sake, there is no such example in international law and there is no reason in international law to recognize this. Indeed, international law permits a state to demand from the other country reparations for damage caused to its nationals, in the name of the state for the sake of its nationals. This is called diplomatic protection, as is generally known. Diplomatic protection is, however, an act based on the state’s own right of diplomatic protection, and the individual’s claim itself is not asserted by this act. The claim for damages is asserted as the state’s own claim. Whether the state exercises the right of diplomatic protection is decided by the state in its own judgment, and the state exercises the right in its name. It does not follow that the state acts on behalf of its nationals. Borchard and others call this phenomenon “immersion of the individual’s claim into the state’s claim.” In this case, the state is not interfered with at all by the nationals in regard to how and what the state claims, and how it solves the question of the claim. With regard to the amount of compensation which the state claims, it does not always claim the compensation for the whole damage caused to the nationals. Further, the state can determine freely by its intention how the state distributes the compensation thus obtained. Therefore, in this case, we must say that there is no room for regarding the individual as the subject of right in international law.
(5) As understood from the above, there is no general way open to an individual who suffers damages from an illegal act of hostility in international law, to claim damages in international law. Accordingly, the possibility left to the individual comes to the question whether he can ask for redress before a domestic court of one or both belligerents. Redress before a Japanese court, however, cannot be asked for. The sufferers must bring an action before a Japanese court against the other country as defendant, in this case, against the United States as defendant, but it is an established principle in international law that a country is not subject to the jurisdiction of the civil courts of other countries; and this principle is also recognized by Japan. (Daishinin (Court of Cassation), (Case No. (ku) 218 of 1928, Decision of December 28, 1928, 7 Minshu (Collection of Judicial Precedents Concerning Civil Affairs) 1128.) (6) Then, is redress before the court of the United States permitted? With regard to this point, we must examine such questions in adjective law as whether the court of the United States has jurisdiction, and whether the plaintiffs in this case have the right to bring an action as foreigners, and also in substantive law. However, if we state the conclusion to the question is substantive law, the plaintiffs, in the law of the United States, cannot assert responsibility for the illegal act against the United States or President Truman. In the law of the United States, the legal theory of so-called Sovereign Immunity has consistently applied since the 19th Century. This is the principle that the state does not assume responsibility of compensation for illegal acts committed by public servants in the performance of duty, like the principle in England that the “King can do no wrong.” With regard to this legal theory of Sovereign Immunity, it is said that the theory is based on political measures imposed out of necessity, or it is explained that all the nationals improperly committed an illegal act, or that what the state does must be legal. Thus, the theory is rationalized by precedent and doctrine. The legal theory of Sovereign Immunity applies not only to the state but also to the highest executive organs of the state, including the presidency, and it is understood that the persons of these organs do not assume responsibility as individuals for their illegal acts committed in the performance of their duties. As alleged by the plaintiffs, the English legal theory that the “King can do no wrong” was not adopted as such by the United States, and it is said that the reason why the theory of Sovereign Immunity which is almost the same as the English theory, has come to apply in the United States is not well known. There is, however, no room for denying that the theory of Sovereign Immunity generally applies in the United States. However great the atomic bomb may be in its destructive power as alleged by the plaintiffs, it cannot possibly be regarded that the atomic bomb has crushed off the theory of Sovereign Immunity. After World War II, the United States has come to admit the responsibility of compensation by the state for illegal acts by enacting the Federal Tort Claims Act. The Act, however, has many exceptions; and it stipulates that the state does not assume responsibility when the administrative organs of the state perform discretionary duties, and that the state does not assume responsibility for hostile acts of land and sea forces. The Act also excludes claims arising in foreign countries. Accordingly, for the reasons stated above, We can only say that the sufferers can not claim compensation for damages for torts by the United States or President Truman, in accordance with the law of the United States. It is a self-evident truth that this conclusion is the same whether a suit is instituted at the time of the atomic bombing or after the enactment of the Federal Tort Claims Act.
(7) The above concerns the case where an individual exercises a claim in international law before the courts of Japan or the United States. The above argument will also apply in the case where an individual sues for damages before the courts of Japan or the United States for the reason that an illegal act is constituted under the law of Japan or the United States. Therefore, although there is no need to repeat it, the conclusion is that, with regard to a claim under municipal law, the individual cannot ask for redress before the courts of Japan or the United States. 5. Waiver of claims in accordance with the Japanese Peace Treaty.
(1) The greater part of the conclusion of this suit will be drawn from the above. However, all questions have not yet been examined. It requires further examination as to how the rights and duties arising out of the state of war between Japan and the United States are dealt with by the treaty between both countries, and how the individual’s claim in international law is stipulated in the treaty. (2) Article19(a) of the Peace Treaty between the Allied Powers and Japan (“the Japanese Peace Treaty”), concluded in San Francisco on September 8 1958, effective April 28, 1952, provides that: “Japan waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of a state of war, and waives all claims arising from the presence, operations or actions of forces or authorities of any of the Allied Powers in Japanese territory prior to the coming into force of the present Treaty.”
It is clear that the “claims of Japan” which were waived by this provision includes all claims which Japan had in accordance with treaties and international customary laws. Accordingly, claims for compensation for damages caused to Japan by illegal acts of hostility, for example, are necessarily included. (3) Then, what will the waived “claims of Japan” indicate? The defendant State alleges that the State of Japan cannot waive the rights of its nationals, since the State of Japan and Japanese nationals are different subjects of law; and accordingly what was waived was nothing but the right of diplomatic protection of Japan. This view is, however, not right. The right of diplomatic protection is an inherent right of a state as already stated. Accordingly, it is included in the “claims of Japan” in article 19(a). Further, while the “claims of Japanese nationals,” as a general expression, are understood to be substantive rights, the right of diplomatic protection is understood to be an adjective right, strictly speaking, even though there are many cases where the state invokes the right of diplomatic protection, taking with its own nationals’ rights in the law of the other state against that state. (4) There is a view that a state cannot waive the claims of nationals who are different subjects of law from the state. It is exactly as the above, if claims of nationals mean rights in international law. However, it must be said that the state can waive its nationals’ claims in municipal law. The state has the sovereign right to create, change, and extinguish its nationals’ rights and duties in accordance with the regular procedures of municipal law; and it is possible in legal theory for a state to promise to waive its nationals’ rights of the above nature against another state, setting aside the question whether the promise is right or wrong. This is clear from the fact that Japan recognizes in article 14(a)2(I) of the Japanese Peace Treaty that the Allied Powers shall have the right to dispose of property of Japanese nationals within the territory of the Allied Powers (so-called overseas assets). And it will be easily understood that the object of waiver in this case is the rights of nationals in municipal law. (5) Such being the case, it will be natural to understand that the “claims of Japanese nationals” waived by article 19(a) are the claims of Japanese nationals in the municipal laws of Japan and of the Allied Powers, against the Allied Powers and their nationals. The expert opinions of Kaoru Yasui, Shigejiro Tabata and Yuichi Takano unanimously conclude that the “claims of Japanese nationals” are the rights of Japanese nationals themselves. Further, the Japanese Government also regarded them as the rights of Japanese nationals. This is clear from the fact that Kumao Nishimura (then Director of Treaties Bureau, Ministry of Foreign Affairs), government delegate in the ad hoc Committee on the Peace Treaty and the Security Treaty between Japan and the United States of America, House of Representatives, gave an explanation to the above effect in the article-by-article explanation of the Japanese Peace Treaty.
(6) The plaintiffs allege that an individual’s claim in international law is included in the “claims of Japanese nationals.” However, as already stated, an individual’s claim in international law is not recognized until it is provided for by a treaty and the right of bringing action and other procedural guarantees by which the individual can assert the claim have come into existence internationally. Such a procedural guarantee undoubtedly is not recognized by the Japanese Peace Treaty. Also, if we understand, as alleged by the plaintiffs, that the claims of Japanese nationals in international law are included in the Japanese Peace Treaty, we must conclude that claims for damages by Japanese nationals in international law are admitted for the first time by this treaty and that simultaneously the claims are waived by the same treaty. It is, however, unnatural to understand that such a special technique was used in the treaty; and there was no necessity to use such a technique. There is no example where individual claims for damages were recognized in customary international law at any time prior to the Japanese Peace Treaty. Accordingly, it does not follow that the Japanese Peace Treaty admitted Japanese nationals’ claims for damages in international law and accordingly made them the object of a waiver. What were waived in article 19(a) of the Japanese Peace Treaty were Japanese nationals’ claims under the municipal laws of Japan and of the Allied Powers. 6. Defendant’s responsibility for waiver of claims.
(1) The plaintiffs allege that the defendant State lost the plaintiffs’ claims for damages in international law and municipal law against the United States and President Truman by waiving them. It is, however, as stated above, that claims in international law were not the object of waiver in the above-mentioned provisions; and it is as already explained that there is no admitting the existence of even the claims in municipal law which were made the object of waiver. Such being the case, it follows that the plaintiffs had no rights to lose, and accordingly there is no reason for asserting the defendant’s legal responsibility therefore.
(2) Everyone has a whole-hearted compassion for those who suffered damages by the dropping of the atomic bombs, which possess the largest-scale and strongest destructive power in human history. It is a common desire of mankind to totally abolish war, or at least to limit it to the minimum and confine damage to the minimum; and for that purpose we, mankind, are persevering in our efforts day and night. However, if a war unfortunately occurs, it goes without saying that every country is required to minimize damage and to protect its nationals. In this light, the question of State redress on the basis of absolute liability will arise necessarily for war calamity. Actually, there is the “Law respecting Medical Treatment and the Like for Sufferers of the Atomic Bomb,” which is related to this case; but it is clear that a law of this scale cannot possibly be sufficient for the relief or rescue of the suffers of the atomic bombs. 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. Also, the seriousness of the damage cannot compare a moment with that of the general calamity. Needless to say the defendant state should take sufficient relief measures in this light. That is, however, no longer the duty of the Court, but a duty which the Diet or legislature or the Cabinet or the executive must perform. Moreover, it is by such a procedure that relief measures can be taken not only by the parties to this suit, but also by general sufferers of the atomic bombs; and there lies the raison d’être of the legislature and the administration. It cannot possibly be understood that the above is financially impossible in Japan, which has achieved a high degree of economic growth after the war. We cannot see this suit without regretting the political poverty. 7. Conclusion.
For the above reasons, the plaintiffs’ claims in this suit are ruled improper, without considering the other issues; and we can only dismiss the plaintiffs’ claims on the merits. Accordingly, applying articles 89 and 93 of the Code of Civil Procedure to the costs of litigation, we decide as in the text of the judgment above. Civil Affairs Division No. 24, Tokyo District Court.
Presiding Judge T. Koseki (Toshimasa Koseki), Judge Y. Mibuchi (Yoshiko Mibuchi), Judge A. Takakuwa (Akira Takakuwa).
|Damaged District||Population prior to Damage||Casualties|
| Missing: | 6,738 | | Seriously wounded: | 51,012 | | Slightly wounded: | 105,543 | | Total: | 423,293 |
|Damaged District||Population prior to Damage||Casualties|
|Hiroshima||336,483 (1944)||Killed: 78,150|
|Nagasaki||270,063 (1944)||Killed: 23,753|
| Nagasaki | 280,542 | Killed: | 73,884 |
|Damaged District||Population prior to Damage||Casualties|
|Hiroshima||336,483 (1944)||Killed: 78,150|
|Nagasaki||270,063 (1944)||Killed: 23,753|
| Wounded: | 76,796 | | Total: | 150,680 |
| Damaged District | Population prior to Damage | Casualties | | Hiroshima | 336,483 (1944) | Killed: 78,150 |
| Wounded: | 51,408 |
| Nagasaki | 270,063 (1944) | Killed: 23,753 |
| Wounded: | 41,847 |
A New-Type, Cruel Bomb Ignoring International Law; Imperial Government Protest to the Government of the United States. With regard to the attack by a new-type bomb on the city of Hiroshima by a B-29 bomber on the 6th inst., the Imperial Government filed the following protest on the 10th inst., to the Government of the United States through the Government of Switzerland, and gave instructions to the Japanese Minister to Switzerland, Kase, to make the explanation of the same effect to the International Committee of Red Cross. Protest against the Attack of a New-Type Bomb by American Airplane:
On the 6th of this month, an airplane of the United States dropped a new-type bomb on the urban district of the city of Hiroshima, and it killed and wounded a large number of the citizens and destroyed the bulk of the city. The city of Hiroshima is an ordinary local city which is not provided with any military defensive preparations or establishments, and the whole city has not a character of a military objective. In the statement on the aerial bombardment in this case, the United States President “Truman” asserts that they will destroy docks, factories and transport facilities. However, since the bomb in this case, dropped by a parachute, explodes in the air and extends the destructive effect to quite a wide sphere, it is clear to be quite impossible in technique to limit the effect of attack thereby to such specific objectives as mentioned above; and the above efficiency of the bomb in this case is already known to the United States. In the light of the actual state of damage, the damaged district covers a wide area, and those who were in the district were all killed indiscriminately by bomb-shell blast and radiant heat without distinction of combatant or non-combatant or of age or sex. The damaged sphere is general and immense, and judging from the individual state of injury, the bomb in this case should be said to be the most cruel one that ever existed. It is a fundamental principle of international law in time of war that a belligerent has not an unlimited right in choosing the means of injuring the enemy, and should not use such weapons, projectiles, and other material as cause unnecessary pain; and these are each expressly stipulated in the annex of the Convention respecting the Laws and Customs of War on Land and articles 22 and 23(e) of the Regulations respecting the Laws and Customs of War on Land. Since the beginning of the present World War, the Government of the United States has declared repeatedly that the use of poison or other inhumane methods of warfare has been regarded as illegal by the public opinion in civilized countries, and that the United States would not use these methods of warfare unless the other countries used these first. However, the bomb in this case, which the United States used this time, exceeds by far the indiscriminate and cruel character of efficiency, the poison and other weapons the use of which has been prohibited hitherto because of such an efficiency. Disregarding a fundamental principle of international law and humanity, the United States has already made indiscriminate aerial bombardments on cities of the Empire in very wide areas, and it has already killed and injured a large number of old people, children, and women, and collapsed or burned down shrines, temples, schools, hospitals and ordinary private houses. Also, the United States has used the new bomb in this case which has indiscriminate and cruel character beyond comparison with all weapons and projectiles of the past. This is a new offence against the civilization of mankind. The Imperial Government impeaches the Government of the United States in its own name and the name of all mankind and of civilization, and demands strongly that the Government of the United States give up the use of such an inhumane weapon instantly.
1. Kokka Boisho Ho, Law No. 125 of October 2, 1947. “Article 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 the public body is liable to make compensation therefor. (2) In the case of the preceeding paragraph, if there has been intent or gross negligence, the state or the public body may claim compensation from the official or servant involved.”
2. Nihon Koku Kempo, November 3, 1947. “Article 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.”