Shimoda et al. v. the State

Court	District Court, Tokyo Japan, Japan
Decision title	Judgment
Decision date	7 December 1963
Parties	Ryuichi Shimoda et al. State of Japan
Categories	War crimes
Keywords	nuclear weapons, war crimes
Links	Judgment

Summary

Residents of Hiroshima and Nagasaki jointly brought an action against the government of Japan for the damages they and members of their families suffered as a result of the atomic bombings by the United States in August 1945.

Among other things, it was alleged that the dropping of the atomic bombs was an unlawful act and that Japan's waiver of claims for damages under domestic and international law against the US gave rise to an obligation for the government of Japan itself to pay damages.

The Court held that the dropping of atomic bombs on Nagasaki and Hiroshima were violations of the laws and customs of war, because the attacks did not distinguish between military and civilian targets and inflicted unnecessary suffering. The Court ruled that the bombings, as an indiscriminate bombardment on undefended cities were unlawful acts.

With regard to the claim of the plaintiffs for damages, the Court ruled that individuals did not have rights under international law unless specifically provided for. Since this was not the case, the Court held that individuals could not claim damages directly under international law. The claim was dismissed by the Court on this ground.

Procedural history

The proceedings at the District Court commenced in April 1955.

Legally relevant facts

On the 6th of August, 1945, the United States dropped an atomic bomb on Hiroshima, and on the 9th of August a second atomic bomb was dropped on Nagasaki. In Hiroshima and Nagasaki, the use of atomic bombs killed and injured an estimated 225,000 innocent civilians.

The plaintiffs were all residents of either Hiroshima or Nagasaki when the atomic bombs were dropped in 1945. Most of their family members were killed and others, including some of the plaintiffs themselves, were injured. The plaintiffs jointly brought an action for damages against the State of Japan.

The action was based on the following grounds:

that they suffered injury through the dropping of atomic bombs by the United States of America;
that the dropping of these atomic bombs as an act of hostility was illegal under the rules of positive international law then in force, for which the plaintiffs had a claim for damages;
that the dropping of atomic bombs also constituted a wrongful act under municipal law, ascribable to the United States and its President, Mr. Harry Truman;
that Japan had waived, by virtue of the provisions of Article 19 (a) of the Treaty of Peace with Japan of 1951, the claims of the plaintiffs under international law and municipal law, with the result that the plaintiffs had lost their claims for damages against the United States and its President; and
that this waiver of the plaintiffs’ claims by the defendant, the State, gave rise to an obligation on the part of the defendant to pay damages to the plaintiffs.

Core legal questions

Is the use of atomic weapons illegal?
Was the use of atomic bombs on Nagasaki and Hiroshima a violation of the laws and customs of war?
Can individuals bring claims for compensation under international law?

Specific legal rules and provisions

Article 25 of the regulations of the Law and Customs of War on Land of 1899 (indiscriminate nature of attack).
Article 23(a) of the regulations of the Law and Customs of War on Land annexed to the Hague Convention IV on 18 October 1907.
Geneva Protocol of 17 June 1925, (prohibition on ‘the use in war of asphyxiating, poisonous or other gases).
Articles 22 and 24 of the Draft Rules of Air Warfare of 1923 (prohibition on indiscriminate aerial bombing of non-combatants).

Court's holding and analysis

The Court did not go into the question whether atomic weapons are illegal under international law as such.

The Court held that the legality of the use of a particular weapon was to be ascertained in light of the principles of international law applicable to the conduct of warfare, in particular the prohibition on indiscriminate bombardment of an undefended city and the prohibition on inflicting unnecessary suffering. Although no generally applicable treaty relative to aerial bombardment was in force at time of the bombing, the Court –on the basis of the Draft Rules of Air Warfare (1923) and, by analogy, on the rules applicable to bombardment by land and naval forces– held that the indiscriminate bombing of undefended cities was unlawful under customary law. It further stated that the principle of distinction between military and non-military objectives had not been nullified by the supposed adoption by the belligerents of a doctrine of total war. The bombings of Nagasaki and Hiroshima, as undefended cities, were thus held to have been unlawful acts.

As far as the judgment on the issues of the waiver in Article 19(a) of the Peace Treaty with Japan and the plaintiffs’ claim for compensation are concerned, the Court took to the view that individuals have no rights under international law unless specifically recognised in a treaty and that thus there was no general way open for individuals to claim damages directly under international law. Also, because of the doctrine of sovereign immunity, individuals are also not able to pursue a claim on the municipal law plane. Therefore, the plaintiffs did not lose any rights as a result of the waiver of claims by Japan under the Treaty of Peace with Japan of 1951.