Ryuichi Shimoda v. The State

236:, which prevents Japanese nationals from suing the U.S. for actions "arising out of the war or out of actions taken because of the existence of a state of war" (similarly, U.S. nationals are not permitted under Article 14 (b) of the treaty to sue Japan for its war-related acts). As a result, Okamoto gave up the notion of trying the case in a US court and decided to seek action in the Japanese legal system. In co-operation with local organizations in Hiroshima and Nagasaki, a group of five people were selected for the purpose of making the motion in a Japanese court. Shimoda, the leader of the group, came from Hiroshima and was 57 years old. He lost four daughters and one son in the atomic attack on Hiroshima, and he, his wife and surviving son suffered from persistent health problems. A lawyer named Yasuhiro Matsui joined the legal team. 315:

that they suffered injury through the dropping of atomic bombs by members of the Air Force of the United States of America; (b) that the dropping of atomic bombs as an act of hostilities was illegal under the rules of positive international law (taking both treaty law and customary law into consideration) then in force, for which the plaintiffs had a claim for damages; (c) that the dropping of atomic bombs also constituted a wrongful act on the plane of municipal law, ascribable to the United States and its

345:

directed at military objectives only, inasmuch as it resulted in damage comparable to that caused by indiscriminate bombardment. Nevertheless, the claimant as an individual was not entitled to claim damages on the plane of international law, nor was he able, as a result of the doctrine of sovereign immunity, to pursue a claim on the plane of municipal law. In these circumstances, the plaintiffs had no rights to lose as a result of the waiver contained in Article 19 (a) of the Treaty of Peace with Japan.

26: 381:, that the court called "Blind Aerial Bombardment" and a distinction between a defended and an undefended city. "In principle, a defended city is a city which resists an attempt at occupation by land forces. A city even with defence installations and armed forces cannot be said to be a defended city if it is far away from the battlefield and is not in immediate danger of occupation by the enemy." 393:

destruction was lawful. Thus, because of the immense power of the atom bombs and the distance from enemy land forces, the atomic bombings of both Hiroshima and Nagasaki "was an illegal act of hostilities under international law as it existed at that time, as an indiscriminate bombardment of undefended cities".

336:, which provided for the obligation to pay just compensation in every case of expropriation of private property by the State for public use; and, finally, on unlawful infringement of the rights of the plaintiffs through the omission of the defendant to take appropriate measures for recovery of compensation. 314:

in August 1945. Most of the members of their families were killed and many, including some of the plaintiffs themselves, were seriously wounded as a result of these bombings. The plaintiffs jointly brought the present action against the defendant, the State, for damages on the following grounds: (a)

128:

was an illegal act of hostilities according to the rules of international law. Nevertheless, the claimant as an individual was not entitled to claim damages on the plane of international law, and he was not able, as a result of the doctrine of sovereign immunity, to pursue a claim on the plane of

344:

that the action must fail on the merits. The aerial bombardment with atomic bombs of the cities of Hiroshima and Nagasaki was an illegal act of hostilities according to the rules of international law. It must be regarded as indiscriminate aerial bombardment of undefended cities, even if it were

392:

The court also ruled that when military targets were concentrated in a comparatively small area, and where defense installations against air raids were very strong, that when the destruction of non-military objectives was small in proportion to the large military interests, or necessity, such

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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 (e) that this waiver of the plaintiffs' claims by the defendant, the State, gave rise to an

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The court ruled that blind aerial bombardment was permitted only in the immediate vicinity of the operations of land forces and that only targeted aerial bombardment of military installations was permitted further from the front. It also ruled that the incidental death of civilians and the

185:

offered not to make any complaints in the media or in legal institutions about the use of the nuclear weapons if the United States Government agreed to drop its demand to try Japanese war criminals. During the Tokyo War Crimes Trial, some of the defense lawyers tried to convince the

148:

by a group of five survivors of the atomic attacks on Hiroshima and Nagasaki, who claimed the action was illegal under the laws of war and demanded reparations from the Japanese government on the ground that it waived the right for reparations from the U.S. government under the 1951

414:

found against the plaintiffs because even though the Shimoda court was willing to say that the United States had in fact violated international law, it also said that Japan had waived the right of its nationals to recover against the United States because of the 1951 treaty....

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The plaintiffs' cause of action was based, more specifically, on the provisions of Article I of the State Redress Law, which was applicable to the case of injury to a private person through an unlawful act of a government official; on the provisions of Article 29 of the

401:

One of the main arguments of the court in the Shimoda case, that the waiver of claims in the San Francisco peace treaty precluded any actions for damages by Japanese citizens against the US government, was also used in the US legal system. In the case of

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Proceedings at the District Court in Tokyo began in April 1955, and they lasted for eight and a half years until the final ruling was rendered on December 8, 1963. Okamoto died of a stroke in April 1958 and did not live to see the final ruling.

225:(Questions and Answers on the Civil Lawsuit over the Atomic Bombings)", in which he called upon individuals in Hiroshima and Nagasaki to take legal action against the U.S. government within the U.S. legal system. 763: 748: 733: 715: 700: 190:

to launch a legal investigation into the matter of the legality of the first use of nuclear weapons, but their motions were ignored. At the end, the Tokyo trials did not raise any issues regarding the

807:, Tokyo District Court, 7 December 1963. Source: Hanrei Jiho, vol. 355, p. 17; translated in The Japanese Annual of International Law, vol. 8, 1964, p. 231. Copy on the website of the 530: 221:

Despite this, one of these defense lawyers, Shoichi Okamoto, decided to press on with the nuclear weapons issue after the trial was concluded. In February 1953, he published a booklet titled "

800: 418:

Without a waiver of all war crime claims that could have been brought by either side, Japan and the United States might have wrangled endlessly about liabilities arising out of the war.

685: 385:

destruction of civilian property during targeted aerial bombardment was not unlawful. The court acknowledged that the concept of a military objective was enlarged under conditions of

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for its part in the forced labor that he performed during the Second World War, the Superior Court of Orange County rejected the motion and referred to the Shimoda case as follows:

232:, the mayor of Hiroshima at the time, opposed the plan on grounds that the US legal system was not favorable to such actions. This was based largely upon Article 19 (a) of the 1951 258:. On the 22nd anniversary of the attack on Pearl Harbor, the District Court of Tokyo ruled the use of nuclear weapons in warfare wasn't illegal, but issued an opinion in its 844: 187: 796:

Judge T. Koseki (Toshimasa Koseki), Judge Y. Mibuchi (Yoshiko Mibuchi), Judge A. Takakuwa (Akira Takakuwa) (Civil Affairs Division No. 24, Tokyo District Court).

550: 162: 117: 527: 808: 555: 170: 797: 206:

existed throughout the war. As a result, many Japanese leaders and military personnel escaped prosecution for the bombings of Asian cities and

776: 551:"Shimoda case (Compensation claim against Japan brought by the residents of Hiroshmina & Nagasaki), Tokyo District Court, 7 December 1963" 512: 437: 191: 129:

municipal law. In these circumstances, the plaintiffs had no rights to lose as a result of the waiver contained in Article 19 (a) of the

760: 745: 730: 712: 697: 623: 594: 363: 265: 78: 74: 854: 316: 169:, there has been legal debate over the action. On August 10, 1945, the Japanese government addressed a communication to the 485:"'The Atomic Bombing, The Tokyo War Crimes Tribunal' and the 'Shimoda Case: Lessons for Anti-Nuclear Legal Movements'" 839: 849: 354:

Although no international treaty governing air warfare existed at the time of the bombings, the court issued its

324: 233: 150: 130: 686:

Hanrei Jiho, vol. 355, p. 17; translated in The Japanese Annual of International Law, vol. 8, 1964, p. 231.

834: 207: 195: 173:, asking it to denounce the U.S. government as performing a crime under international law. Following the 333: 228:

Okamoto's plan met great deal of opposition within Japanese society and even in Hiroshima and Nagasaki.

287:(which detailed regulations for aerial warfare, but never came into force), and was therefore illegal. 182: 145: 36: 178: 81:- Bombardment by Naval Forces in Time of War, and the Hague Draft Rules of Air Warfare of 1922–1923 452: 307: 174: 508: 359: 819: 378: 358:

judgment based on several distinctions which were pertinent to both conventional and atomic

25: 804: 635: 627: 606: 598: 534: 320: 255: 211: 620: 591: 377:, the court drew a distinction between "Targeted Aerial Bombardment" and indiscriminate 631: 602: 203: 828: 260: 649: 272: 229: 215: 166: 323:; (d) that Japan had waived, by virtue of the provisions of Article 19 (a) of the 264:

that the act of dropping an atomic bomb on cities was at the time governed by the

199: 407: 280: 254:

the atomic bombings of Hiroshima and Nagasaki were the subject of a Japanese

386: 303: 121: 484: 328:

obligation on the part of the defendant to pay damages to the plaintiffs.

814: 125: 493:

Yuki Tanaka's article is followed by a companion article by Richard Falk

652:

The Hague, December, 1922-February, 1923 These rules were never adopted

621:

Bombardment by Naval Forces in Time of War (Hague IX); October 18, 1907

438:"The Dropping of the Atomic Bombs and a Shadow of the War Crimes Issue" 389:, but stated that the distinction between the two did not disappear. 777:"Mitsubishi Materials Corporation et al. v. Frank H. Dillman et al" 764: