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Implications of the "Hiroshima Decision"

Masanobu INOUE
Member of the National Council
Japanese Association of Lawyers Against Nuclear Arms (JALANA)
‚PDOutline of the "International People's Tribunal to Judge the A-bombings - Hiroshima"
On July 15-16, 2006 the "International People's Tribunal to Judge the A-Bombings - Hiroshima" opened in Hiroshima, and a decision was rendered verbally. One year later, July 16, 2007, the text of the decision was released in Hiroshima and handed to the Hibakusha, the A-bomb survivors. A commemorative symposium followed. The role of the judges was played by Professors Carlos Vargas, Lennox S. Hinds and Masaji Ie, and the part of the prosecutors by four Japanese and one Korean lawyer. Professor Carlos Vargas drafted the decision. I played the part of a member of the counsel for the prosecution. At the commemorative symposium, I was given an opportunity to speak as a panelist with Professor Vargas.
As a lawyer of Hiroshima, I express my appreciation to Professor Vargas and the other judges for their excellent work that led to the judgment.
The collection of the documents from the International People's Tribunal is available in this hall. So, please take a copy of and read it. The tribunal was intended to declare that the A-bombings of Hiroshima and Nagasaki constituted a war crime, and prosecute the then US Presidents, the high administration officials, the military leaders and the scientists who had played active role in developing it. It was thus to make clear the responsibility for the war crimes by strictly applying international law which had already been in force those days. It concluded that all the accused, listed below, were guilty. They were: President@Franklin D. Roosevelt; President Harry S. Truman; Secretary of State James F. Byrnes; Secretary of War Henry L. Stimson; Army Chief of Staff George C. Marshall; Deputy Chief of Staff of US Army Thomas T. Handy; Chief of the US Army Air Corps Henry H. Arnold; Commanding General of the US Army Strategic Air Forces Carl A. Spaatz; Commander Curtis LeMay of the 20th Bomber Command; Lieutenant Colonel Paul W. Tibbets; Colonel William S. Parsons (Weaponeer and Ordnance Officer on "Enola Gay"); Commander Charles W. Sweeney (Captain of "Bockscar"); Lieutenant Colonel Frederick Ashworth (Weaponeer Commander of "Bockscar"); Lieutenant General Leslie Richard Groves (military director of the "Manhattan Engineer District"); and J. Robert Oppenheimer, the director of the Los Alamos Laboratory - the Manhattan Project.
The international laws referred to are:
-- Martens Clause that established the principle of international practice to protect the victims of war;
-- Article 22 of the Rule respecting the Laws and Customs of War on Land, Annex to the Hague Convention VI in 1907;
-- The 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare;
-- Nuremberg Principles, the guidelines for determining what constitutes a war crime.
The accused listed above were found guilty for conventional war crimes, crimes against humanity or for the conspiracy to commit these crimes, in accordance with their positions.
To prove their guilt for war crimes, the prosecutors submitted along with the indictment photocopies of 64 official U.S. documents to cover the process from the start of the development of the A-bombs, the selection of the targets of the bombings through the actual attack with the bombs, including the "Order to Drop Atomic Bomb". The tribunal invited three Hibakusha, including one Korean victim, a radiology expert, historians and researchers on international law to hear their testimonies.
The defense counsel was not nominated in the tribunal. Instead, the amicus curiae presented an argument for the justification of the A-bombings.
‚QDWhy Were the A-bombings Being Tried Now as War Crimes?
That the A-bombings of Hiroshima and Nagasaki were war crimes under the light of international law of those days is indisputably obvious to the lawyers who are concerned with nuclear weapons problems. But simple and obvious facts are often kept from public consciousness. Not once have the war crimes of those who were engaged in the A-bombings ever been pursued. Politicians tend to invent myths or make things look complicated to conceal the truth from the public eye. The argument intended to justify the A-bombings or the doctrine of nuclear deterrence is a typical example.
One can easily understand that if the nuclear attack on Hiroshima and Nagasaki 62 years ago had been ruled as war crimes, there would have been no subsequent development, possession or deployment of nuclear weapons. Nor would there be any room for the policy of nuclear deterrence to pervade, putting nuclear weapons in the center of security policy. The United States even now places the nuclear arsenal at the center of its war policy. It is seeking to blur the boundary with conventional weapons, and engaging in the development of more usable nuclear weapons. The danger of nuclear weapons being actually used is now more real than it was during the "Cold War" between the East and the West.
In January 2002, the Bush Administration sent to the Congress the "Nuclear Posture Review", the NPR, the new nuclear strategy, as a secret report. Recently, the Federation of American Scientists (FAS) revealed a part of the secret document, which was developed under the NPR. The document was elaborated on in 2002 by the US Strategic Command to prepare a revised, 2003 edition of OPLAN 8044, a nuclear war plan pointing to terrorists and "rogue states" as targets. It replaced the Single Integrated Operational Plan (SIOP), the nuclear war plan of the Cold War era that presumed large-scale warfare (I can send you a copy of it on request). You can learn from the document that Iraq, Iran, Syria, North Korea and Libya were added to the list of nuclear attack targets. With the "National Security Strategy" announced in September 2002, the US adopted a strategy of preemptive attack on non-state parties and "rogue states", regarding them as proliferators of weapons of mass-destruction. At the same time, it shows that the US maintains an option of preemptive nuclear attack on any of these countries.
On November 1, Paul Tibbets, the captain of "Enola Gay", who dropped the A-bomb over Hiroshima 62 years ago, died at age 92. The US had treated him as a hero until his last day. The Hiroshima Tribunal judged him guilty for war crimes. The US must have needed to handle him as a hero to continue pursuing the nuclear war plan.
Abolishing nuclear weapons requires an international convention. The Chemical Weapons Convention has set an excellent precedent for it. We already have a model Nuclear Weapons Convention drafted by the International Association of Lawyers Against Nuclear Arms (IALANA), which has been registered in the UN documents.
What is needed to bring it into being an actual international convention? It is a legal conviction that nuclear weapons are illegal and that their use constitutes a war crime.
A campaign of citizens in international solidarity based on legal conviction can produce an international law. This has been experienced by the signing of the convention on the prohibition of anti-personnel mines through Ottawa Process, as well as an ongoing effort for an international convention to ban cluster bombs, called the Oslo Process.
We already have an advisory opinion of the International Court of Justice, which concludes with authority that the threat or use of nuclear weapons would generally be contrary to the rules of international law. The advisory opinion, however, did not rule that the very existence of nuclear weapons itself was illegal, or that the policy of nuclear deterrence was illegitimate. This is because the nuclear powers formed the permanent members of the UN Security Council, and they were pursuing nuclear deterrence as an official policy for their national security. That some non-nuclear weapons states, such as Japan, are pursuing the policy to hinge their security on the "nuclear umbrella", i.e., the deterrence provided for by a nuclear weapons state, is also an additional reason. As a result, the legal conviction that the use of nuclear weapons is a war crime is not yet established.
This is further proved by the fact that while the Rome Treaty, the legal basis for the International Criminal Court signed in 1998, provides that the use of chemical weapons falls under conventional war crimes, it refers to nothing in terms of nuclear weapons.
In October 2006, in the wake of the nuclear explosion test by North Korea, the Japanese government officials remarked that there should be some room for Japan's possible nuclear development to be discussed. At that time, there were criticisms against the remarks from the viewpoint that such development would contravene Japan's key policy, i.e., the three non-nuclear principles of not possessing, not manufacturing and not allowing the bringing-in of nuclear weapons. There was not, however, any criticism against it from the angle that they were instigating a war crime. If they had suggested the possession of chemical weapons, they should have been seen as having gone mad, because it would have been so absurd.
The Hiroshima decision ruled that those involved in the A-bombings had committed war crimes, and that they were therefore guilty. This is an outcome of the examination of the process leading to the A-bombings of Hiroshima and Nagasaki, carried out by experts of international law on the basis of evidence, as well as of the rigorous application of international law at the time of WWII. The point of its argument was clear. The Hiroshima decision will lay the basis on which the citizens around the world will develop a common legal conviction that the use of nuclear weapons constitutes a war crime.
‚RDNot only did the Hiroshima decision give judgment on the A-bombings, but it also set out an important recommendation for our future:
It urges that the US Government, based on the judgment that nuclear weapons are illegitimate and against international law and that the A-bombing was a war crime, should therefore set about to abolish nuclear weapons. It should apologize to the Hibakusha, the A-bomb victims, and compensate them for their loss and damage. Declaring at home and internationally that having nuclear weapons is a violation of international law, it should inscribe this declaration onto a monument and pass it down to future generations through education.
The decision, in spite of its high moral legitimacy, is not legally binding. A Hibakusha-related organization, the Japan Association of Lawyers Against Nuclear Arms (JALANA) is examining the possibility of following legal procedures to claim compensation and an apology from the US Government for the loss caused to the Hibakusha by the A-bombings. This will be a difficult road. It will need international support from lawyers committed to the anti-nuclear movement.
To eliminate nuclear weapons, a strong political will must be generated in every national government. The key to building such a will is a shared cognition of the atrocious nature of the war crime committed by the use of nuclear weapons. To spread this understanding, I appeal to all of you to make the best use of the Hiroshima decision in the anti-nuclear movement in each of your countries.