By Katherine Iliopoulos
On August 6th and 9th, 1945, for the first and only time in history, atomic bombs were used against mankind and dropped on the Japanese cities of Hiroshima and Nagasaki, respectively, killing over 200,000 civilians.
“Hiroshima and Nagasaki became a common place of death, and living became the exception. People’s eyes came out of their sockets and peeled skin hung off their bodies. Many flocked to the rivers looking for water. People no longer looked human. Parents had to abandon their children, children could not rescue their parents, and family members were unable to recognise one another. Victims overflowed out of hospitals and relief stations. Agonised cries from the injured in damaged air raid shelters and burnt ruins, shouts for family members and calls for help continued through the night, as person after person died.”
These were some of the words used by the International Peoples’ Tribunal on the Dropping of Atomic Bombs on Hiroshima and Nagasaki (IPT) in its judgment of July 16, 2007, to describe the immediate and enduring effects of the atomic bombs that were detonated by the United States Air Force in order to secure Japan’s surrender and a victory for the Allies in the Pacific. Over 60 years later, the US Government has refused to apologise to the victims and their families, nor has it paid compensation.
There has been no official US acknowledgement that the bombings were carried out in violation of international law. The only official rulings with respect to the legality of the atomic bombings have been issued from Japanese tribunals. This hesitation to characterise the bombings as violations of international law can be attributed to the argument that there were very few international humanitarian law treaties in force at the time, much less customary norms. But it can also be argued that there were two customary principles in existence at the time that legally prohibited attacks such as those against Hiroshima and Nagasaki: the prohibition on indiscriminate attacks on civilians and the prohibition on weapons that cause unnecessary suffering.
Were the bombings War Crimes, or Justified on the Basis of Militarily Necessity?
The definition of war crimes in the Charter of the International Military Tribunal for the Far East - which was established to try Japanese war criminals - states that: “Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of a civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”
The 1963 Tokyo District Court Judgment in Shimoda vs. The State declared that the atomic bombing of Hiroshima and Nagasaki was illegal. In the opinion of the Court, the act of dropping an atomic bomb on cities was at the time governed by international law found in the Hague Convention of 1907 IV - The Laws and Customs of War on Land and IX - Bombardment by Naval Forces in Time of War, and the Hague Draft Rules of Air Warfare of 1922–1923 (which were never adopted) and was therefore “an illegal act of hostilities under international law as it existed at that time, as an indiscriminate bombardment of undefended cities.” Article 25 of The Hague Convention IV states that ‘the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”
The Tokyo Court had ruled that the attacks were not justified by “military necessity,” a concept governed by several constraints: an attack or action must be intended to help in the military defeat of the enemy, it must be an attack on a military objective, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated. An argument against illegality is that Hiroshima was indeed a military objective, and that detonating the bomb it helped in the defeat of Japan by forcing it to surrender. But this ignores the fact that this military target was surrounded by a civilian population, upon which disproportionate harm was inflicted.
In the trial of Thiele and Steinert, the US Military Commission held that: “Article 22 of the Hague Regulations stipulates distinctly that the right of belligerents to adopt means of injuring the enemy is not unlimited, and this rule does not lose its binding force in a case of necessity. What may be ignored in the case of military necessity are not the laws of war, but only the usages of war.” In the Hostages case in 1948, the Nuremberg Tribunal recognised that the principle of proportionality applied in 1945, ruling that the degree of retaliation against civilians by forces under the defendants command were criminal due their disproportionate nature: “Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.”
Although an argument can be made that in the WWII war crimes trials the concept of military necessity was only considered in connection with the following two categories of offences: (a) the treatment of prisoners of war and unarmed enemy persons, and (b) the deportation and devastation of property in occupied enemy territory, this is so because of the scope of the factual matters that were considered at Nuremberg, and there does not appear to be a legal basis to conclude that the principle of proportionality would not have also extended to the devastation of property in non-occupied enemy territory.
In the 2007 judgment, the IPT adopted the Shimoda finding, and went on to conclude based on customary law and the Nuremberg Principles that the bombing attacks were deliberate attacks on unprotected cities, not justified by military necessity, causing the unnecessary and excessive deaths of civilians and thereby constituted war crimes.
Crimes Against Humanity
The atomic bombings were also declared crimes against humanity by the 2007 IPT judgment, citing the Charter of the International Military Tribunal for the Far East (IMTFE) among other sources. In Article 5(c) of the Charter, Crimes Against Humanity were defined as “Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
While there is no mention of ‘widespread and systematic’ in the definition of 1945, essential elements of the modern law of crimes against humanity, the IPT noted that “Crimes Against Humanity contains the following elements: The conduct was committed as part of a widespread or systematic attack directed against civilian populations.” But the Dutch Special Court of Cassation in the Albrecht case of 1949, in one of the first decisions on CAH after the Nuremberg Judgment, described crimes against humanity as “characterised either by their seriousness and their savagery, or by their magnitude, or by the circumstance that they were part of a system designed to spread terror, or that they were a link in a deliberately pursued policy against certain groups of the population.” In any case, according to the IMTFE Charter, the attack need only be committed against any civilian population - and the populations of the two cities were predominantly civilian - in connection with any crime within the Tribunal’s jurisdiction, for example, a war crime.
Although it was inevitable that individuals belonging to the category of combatants became intermingled with the civilian population in the cities of Hiroshima and Nagasaki, Article 50(3) of Additional Protocol I of 1977 provides that “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” In the Nuclear Weapons Advisory Opinion (see below), the International Court of Justice ruled that with respect to Additional Protocol I, “all States are bound by those rules … which, when adopted, were merely the expression of the pre-existing customary law.” It is unclear however, whether this customary law also existed in 1945, although something may be made of Part II of the Fourth Geneva Convention, concluded mere 4 years later in 1949, entitled “General protection of populations against certain consequences of war. According to Article 13, this covers “the whole of the populations of the countries in conflict,” a definition of ‘civilian population’ which - according to the ICRC Commentary - is reflected in Article 50.
Nuclear Weapons: Were they illegal in 1945?
Another source of opposition to the idea that the bombings were illegal on the basis of the type of weapon used is that nuclear weapons are sui generis and therefore need to be analysed under a legal framework that did not exist in 1945.
The legality of nuclear weapons per se featured in the 2007 IPT judgment, concluding that the nuclear weapons detonated over Japan “were incapable of distinguishing between civilians and military targets and consequently, caused unnecessary suffering to the civilian survivors” and was therefore illegal.
It relied on the statement of the International Court of Justice Advisory Opinion of July 8, 1996, in relation to the Legality or Illegality of the Threat or Use of Nuclear Weapons: “the threat or use of nuclear weapons would generally be contrary to the rules of International Law applicable in armed conflict, and in particular the principles and rules of Humanitarian Law.” The ICJ found support for its statement that “Humanitarian Law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants” in the Martens Clause.
The Martens Clause states that if a particular rule is not to be found in treaty law, belligerents “remain under the protection and authority” of customary law, the principles of humanity and the dictates of the public conscience. Originally included in the preamble to the Fourth Hague Conventions of 1899 and 1907, it has since been introduced into the main body of the text of Additional Protocol I of 1977 and into the preamble to Additional Protocol II. However there is some doubt among scholars as to whether the Martens Clause upgrades to the level of sources of international law the ‘laws of humanity’ and ‘the dictates of public conscience’.
The Court judged the rule of prohibition on the use of indiscriminate weapons to be customary, and it only made reference to the principle of proportionality in saying that the rule is only of relevance if the weapon used is lawful to begin with and if the target chosen for attack is a military objective within the meaning of humanitarian law.
In the Shimoda case, the Court accepted as a principle of international law the duty to refrain from using means of warfare that cause unnecessary suffering, and it derived this principle from the ‘just war’ tradition and its expression in the St. Petersburg Declaration of 1868, which among other things prohibited the use of projectiles weighing under 400 grams. But it appeared to place more weight on the prior existence of agreements against certain types of weapons such as asphyxiating gases, explosive bullets, and lasers that acutely caused unnecessary suffering, and conflated these prohibitions to implicitly include atomic weapons which came into existence later. All of these treaties had a common principle, the prohibition against unnecessary suffering, and thus provide some evidence of an emerging customary norm as of 1945.
Although the opinions expressed by the majority of judges in the Nuclear Weapons Case concluded that nuclear weapons “would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law,” the Court was unable to categorically rule against their illegality in “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.” Although this may seem to provide a basis for states to continue with their nuclear capabilities, the Court did state that “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”
Looking Ahead
On the 64th anniversary of the atomic bombings, United Nations officials reminded the international community that is “not only a reminder of the destruction wrought by nuclear weapons, but a time to renew the global commitment to rid the world of this deadly scourge.” At the memorial on August 6, Hiroshima Mayor Tadatoshi Akiba called for the global abolition of nuclear weapons by 2020, drawing inspiration from President Barack Obama’s call for “a world without nuclear weapons.” During a speech on April 5 in Prague, President Obama said that “as a nuclear power – as the only nuclear power to have used a nuclear weapon – the United States has a moral responsibility to act.” Obama’s words “took many Japanese by surprise,” said Mr Yuki Tanaka, Research Professor at the Hiroshima Peace Institute and organiser of the IPT, “but there is still the matter of legal responsibility.”
President Obama will chair of a high-level meeting of the United Nations Security Council on nuclear non-proliferation and nuclear disarmament on September 24. US Ambassador to the United Nations Susan Rice said the President wants to focus on the reduction of US and Russian nuclear weapons stockpiles, the adoption of the Comprehensive Nuclear Test Ban Treaty which bans all nuclear testing, as well as negotiations on a new treaty (the Fissile Material (Cutoff) Treaty) that “verifiably” ends the production of materials used to make nuclear weapons.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
Hiroshima Anniversary Time to Renew Commitment to Disarm
United Nations
August 6, 2009
Judgment of July 16, 2007 (PDF)
International Peoples Tribunal on the Dropping of Atomic Bombs on Hiroshima and Nagasaki
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons
International Court of Justice
July 8, 1996
Shimoda v. The State
Tokyo District Court
December 7, 1963
Hiroshima and Nagasaki Anniversary: A Call to Disarm
On August 6th and 9th, 1945, for the first and only time in history, atomic bombs were used against mankind and dropped on the Japanese cities of Hiroshima and Nagasaki, respectively, killing over 200,000 civilians.
“Hiroshima and Nagasaki became a common place of death, and living became the exception. People’s eyes came out of their sockets and peeled skin hung off their bodies. Many flocked to the rivers looking for water. People no longer looked human. Parents had to abandon their children, children could not rescue their parents, and family members were unable to recognise one another. Victims overflowed out of hospitals and relief stations. Agonised cries from the injured in damaged air raid shelters and burnt ruins, shouts for family members and calls for help continued through the night, as person after person died.”
These were some of the words used by the International Peoples’ Tribunal on the Dropping of Atomic Bombs on Hiroshima and Nagasaki (IPT) in its judgment of July 16, 2007, to describe the immediate and enduring effects of the atomic bombs that were detonated by the United States Air Force in order to secure Japan’s surrender and a victory for the Allies in the Pacific. Over 60 years later, the US Government has refused to apologise to the victims and their families, nor has it paid compensation.
There has been no official US acknowledgement that the bombings were carried out in violation of international law. The only official rulings with respect to the legality of the atomic bombings have been issued from Japanese tribunals. This hesitation to characterise the bombings as violations of international law can be attributed to the argument that there were very few international humanitarian law treaties in force at the time, much less customary norms. But it can also be argued that there were two customary principles in existence at the time that legally prohibited attacks such as those against Hiroshima and Nagasaki: the prohibition on indiscriminate attacks on civilians and the prohibition on weapons that cause unnecessary suffering.
Were the bombings War Crimes, or Justified on the Basis of Militarily Necessity?
The definition of war crimes in the Charter of the International Military Tribunal for the Far East - which was established to try Japanese war criminals - states that: “Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of a civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”
The 1963 Tokyo District Court Judgment in Shimoda vs. The State declared that the atomic bombing of Hiroshima and Nagasaki was illegal. In the opinion of the Court, the act of dropping an atomic bomb on cities was at the time governed by international law found in the Hague Convention of 1907 IV - The Laws and Customs of War on Land and IX - Bombardment by Naval Forces in Time of War, and the Hague Draft Rules of Air Warfare of 1922–1923 (which were never adopted) and was therefore “an illegal act of hostilities under international law as it existed at that time, as an indiscriminate bombardment of undefended cities.” Article 25 of The Hague Convention IV states that ‘the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”
The Tokyo Court had ruled that the attacks were not justified by “military necessity,” a concept governed by several constraints: an attack or action must be intended to help in the military defeat of the enemy, it must be an attack on a military objective, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated. An argument against illegality is that Hiroshima was indeed a military objective, and that detonating the bomb it helped in the defeat of Japan by forcing it to surrender. But this ignores the fact that this military target was surrounded by a civilian population, upon which disproportionate harm was inflicted.
In the trial of Thiele and Steinert, the US Military Commission held that: “Article 22 of the Hague Regulations stipulates distinctly that the right of belligerents to adopt means of injuring the enemy is not unlimited, and this rule does not lose its binding force in a case of necessity. What may be ignored in the case of military necessity are not the laws of war, but only the usages of war.” In the Hostages case in 1948, the Nuremberg Tribunal recognised that the principle of proportionality applied in 1945, ruling that the degree of retaliation against civilians by forces under the defendants command were criminal due their disproportionate nature: “Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.”
Although an argument can be made that in the WWII war crimes trials the concept of military necessity was only considered in connection with the following two categories of offences: (a) the treatment of prisoners of war and unarmed enemy persons, and (b) the deportation and devastation of property in occupied enemy territory, this is so because of the scope of the factual matters that were considered at Nuremberg, and there does not appear to be a legal basis to conclude that the principle of proportionality would not have also extended to the devastation of property in non-occupied enemy territory.
In the 2007 judgment, the IPT adopted the Shimoda finding, and went on to conclude based on customary law and the Nuremberg Principles that the bombing attacks were deliberate attacks on unprotected cities, not justified by military necessity, causing the unnecessary and excessive deaths of civilians and thereby constituted war crimes.
Crimes Against Humanity
The atomic bombings were also declared crimes against humanity by the 2007 IPT judgment, citing the Charter of the International Military Tribunal for the Far East (IMTFE) among other sources. In Article 5(c) of the Charter, Crimes Against Humanity were defined as “Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
While there is no mention of ‘widespread and systematic’ in the definition of 1945, essential elements of the modern law of crimes against humanity, the IPT noted that “Crimes Against Humanity contains the following elements: The conduct was committed as part of a widespread or systematic attack directed against civilian populations.” But the Dutch Special Court of Cassation in the Albrecht case of 1949, in one of the first decisions on CAH after the Nuremberg Judgment, described crimes against humanity as “characterised either by their seriousness and their savagery, or by their magnitude, or by the circumstance that they were part of a system designed to spread terror, or that they were a link in a deliberately pursued policy against certain groups of the population.” In any case, according to the IMTFE Charter, the attack need only be committed against any civilian population - and the populations of the two cities were predominantly civilian - in connection with any crime within the Tribunal’s jurisdiction, for example, a war crime.
Although it was inevitable that individuals belonging to the category of combatants became intermingled with the civilian population in the cities of Hiroshima and Nagasaki, Article 50(3) of Additional Protocol I of 1977 provides that “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” In the Nuclear Weapons Advisory Opinion (see below), the International Court of Justice ruled that with respect to Additional Protocol I, “all States are bound by those rules … which, when adopted, were merely the expression of the pre-existing customary law.” It is unclear however, whether this customary law also existed in 1945, although something may be made of Part II of the Fourth Geneva Convention, concluded mere 4 years later in 1949, entitled “General protection of populations against certain consequences of war. According to Article 13, this covers “the whole of the populations of the countries in conflict,” a definition of ‘civilian population’ which - according to the ICRC Commentary - is reflected in Article 50.
Nuclear Weapons: Were they illegal in 1945?
Another source of opposition to the idea that the bombings were illegal on the basis of the type of weapon used is that nuclear weapons are sui generis and therefore need to be analysed under a legal framework that did not exist in 1945.
The legality of nuclear weapons per se featured in the 2007 IPT judgment, concluding that the nuclear weapons detonated over Japan “were incapable of distinguishing between civilians and military targets and consequently, caused unnecessary suffering to the civilian survivors” and was therefore illegal.
It relied on the statement of the International Court of Justice Advisory Opinion of July 8, 1996, in relation to the Legality or Illegality of the Threat or Use of Nuclear Weapons: “the threat or use of nuclear weapons would generally be contrary to the rules of International Law applicable in armed conflict, and in particular the principles and rules of Humanitarian Law.” The ICJ found support for its statement that “Humanitarian Law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants” in the Martens Clause.
The Martens Clause states that if a particular rule is not to be found in treaty law, belligerents “remain under the protection and authority” of customary law, the principles of humanity and the dictates of the public conscience. Originally included in the preamble to the Fourth Hague Conventions of 1899 and 1907, it has since been introduced into the main body of the text of Additional Protocol I of 1977 and into the preamble to Additional Protocol II. However there is some doubt among scholars as to whether the Martens Clause upgrades to the level of sources of international law the ‘laws of humanity’ and ‘the dictates of public conscience’.
The Court judged the rule of prohibition on the use of indiscriminate weapons to be customary, and it only made reference to the principle of proportionality in saying that the rule is only of relevance if the weapon used is lawful to begin with and if the target chosen for attack is a military objective within the meaning of humanitarian law.
In the Shimoda case, the Court accepted as a principle of international law the duty to refrain from using means of warfare that cause unnecessary suffering, and it derived this principle from the ‘just war’ tradition and its expression in the St. Petersburg Declaration of 1868, which among other things prohibited the use of projectiles weighing under 400 grams. But it appeared to place more weight on the prior existence of agreements against certain types of weapons such as asphyxiating gases, explosive bullets, and lasers that acutely caused unnecessary suffering, and conflated these prohibitions to implicitly include atomic weapons which came into existence later. All of these treaties had a common principle, the prohibition against unnecessary suffering, and thus provide some evidence of an emerging customary norm as of 1945.
Although the opinions expressed by the majority of judges in the Nuclear Weapons Case concluded that nuclear weapons “would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law,” the Court was unable to categorically rule against their illegality in “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.” Although this may seem to provide a basis for states to continue with their nuclear capabilities, the Court did state that “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”
Looking Ahead
On the 64th anniversary of the atomic bombings, United Nations officials reminded the international community that is “not only a reminder of the destruction wrought by nuclear weapons, but a time to renew the global commitment to rid the world of this deadly scourge.” At the memorial on August 6, Hiroshima Mayor Tadatoshi Akiba called for the global abolition of nuclear weapons by 2020, drawing inspiration from President Barack Obama’s call for “a world without nuclear weapons.” During a speech on April 5 in Prague, President Obama said that “as a nuclear power – as the only nuclear power to have used a nuclear weapon – the United States has a moral responsibility to act.” Obama’s words “took many Japanese by surprise,” said Mr Yuki Tanaka, Research Professor at the Hiroshima Peace Institute and organiser of the IPT, “but there is still the matter of legal responsibility.”
President Obama will chair of a high-level meeting of the United Nations Security Council on nuclear non-proliferation and nuclear disarmament on September 24. US Ambassador to the United Nations Susan Rice said the President wants to focus on the reduction of US and Russian nuclear weapons stockpiles, the adoption of the Comprehensive Nuclear Test Ban Treaty which bans all nuclear testing, as well as negotiations on a new treaty (the Fissile Material (Cutoff) Treaty) that “verifiably” ends the production of materials used to make nuclear weapons.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
Hiroshima Anniversary Time to Renew Commitment to Disarm
United Nations
August 6, 2009
Judgment of July 16, 2007 (PDF)
International Peoples Tribunal on the Dropping of Atomic Bombs on Hiroshima and Nagasaki
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons
International Court of Justice
July 8, 1996
Shimoda v. The State
Tokyo District Court
December 7, 1963
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