Truman on Trial: Not Guilty
For all their differences our two protagonists have examined the issue of the atomic bombing of Japan by a resort to arguments that in common are expressive of a single concept: that all law generally, and certainly all international law in particular, is politics.
Strictly speaking, in all jurisdictions known to me, a jury may be an arbiter of facts but not matters of law. Accordingly, if my opinions on the guilt or innocence of Harry S. Truman et al. are to be considered at all, I must imagine myself as a member of an imaginary international criminal tribunal, a judge, not a member of a notional jury of my peers. It is in that fantastical capacity that I have applied myself to the issues here. I have sought neither to summarize nor to show how I might weigh each of the facts, and legal issues raised by the Prosecution or by the Defense, but I am content to give my reasoned judgment on the matters which I believe to be crucial to a determination of the innocence or guilt of the accused. I have ignored the opinions of many of those whom both sides have offered in evidence: strictly speaking, as a matter of law, those opinions lack any or any sufficient probative value to assist me in reaching my verdict.
For all their differences our two protagonists have examined the issue of the atomic bombing of Japan by a resort to arguments that in common are expressive of a single concept: that all law generally, and certainly all international law in particular, is politics. For Ronald Radosh, that is clear throughout: he does not seek to argue his case on the law, merely on moral and practical grounds. It is not altogether clear that he feels that there is any legitimate ambit of international law at all: he seems to believe that any tit for tat is legitimate, even implying that the atomic bombings might somehow be set against relatively remote events such as the controversial December 1937 Nanking Massacre (which occurred four years prior to the opening of hostilities against the United States and the British Empire and Commonwealth in December 1941). The remoteness of such reprisals, if that is what they might purport to be, from the precipitating events would make them unlawful as would the unlikelihood that the monstrosity of the atomic bombings would be effective in doing nothing more than deter the enemy from committing further war crimes and crimes against humanity. In any event the legality of undertaking any kind of reprisals in war is now very much in doubt, not least because it tends to lead to a spiral of ever-increasing violence by both sides.
Philip Nobile also has a strange and unsupportable conception of the doctrine of military necessity and although he lays charges against Cabinet members and military officers who served the Truman Administration he appears to have no understanding at all of the doctrine of criminal conspiracy.
The doctrine of military necessity is NOT restricted to emergency measures adopted in the field. On the other hand the authorities recognized today (even the Subsequent Proceedings by US Military Tribunals at Nuremberg) although divided on the proper scope of it, tend to reject it as a defense. As the US Military Tribunal in the High Command Case put it,"It has been the viewpoint of many German writers… that military necessity includes the right to do anything that contributes to the winning of a war. We content ourselves on this subject with stating that such a view would eliminate all humanity and decency and all law from the conduct of war and it is a contention which this Tribunal repudiates as contrary to the accepted usages of civilized nations." In the Hostage Case, another US Military Tribunal declared that"We do not concur in the view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules. International law is prohibitive law. Articles 46, 47 and 50 of the Hague Rules of 1907 make no such exceptions to its enforcement. The rights of the innocent population therein set forth must be respected even if military necessity or expediency degree otherwise." In the Krupp Case, a US Military Tribunal states,"In short these rules and customs of warfare are designed specifically for all phases of war. They comprise the law for such emergency. To claim that they can be wantonly - and at the sole discretion of any one belligerent - disregarded when he considers his OWN situation to be critical, means nothing more nor less than to abrogate the rules and customs of war entirely." [My emphasis.]
The criminality of any criminal conspiracy is not dependent upon proof that the accused actually met or jointly decided upon a course of action contrary to law. It depends upon the completion of the illegal act, and it embraces all who may in parallel and even unknown to each other embrace at any time efforts to promote, plan, prepare, initiate or carry out that illegal act. All who have at one time embraced it without thereafter repudiating the objective prior to the actual commission of the substantive offense may be found guilty of criminal conspiracy. However, if the substantive offense (e.g., a war crime or crime against humanity) is not found to have occurred, then the conspiracy charge cannot succeed in international law.
For Philip Nobile, who by contrast with Mr. Radosh does purport to stick to the terms of 'The Nuremberg Charter' as if they were black-letter law, the politics of law is nevertheless also manifest, in the choice of his authorities and arguments and in the passionate language he employs even to the point of parody, ridicule and cant. The notion that all law is politics is a seductive idea, has an honorable if not unresisted jurisprudential & philosophical foundation and is one to which an historian is likely to be drawn. There is authority for the idea of law as politics in the conventions, too: the famous De Martens clauses in the 1899 and 1907 Hague Conventions are but two examples of the application of a fundamental rule in international law: that over-shadowing any express provision in any particular instrument of international law is a necessary obligation to uphold whatever is necessary in the interests of equity, justice and the dictates of humanity - and that obligation (in the phrase of the British Royal Warrant for the Trial of War Criminals) to “do whatever appears best calculated to do justice" may extend to a loosening as well as to a tightening of prohibitions. A famous if controversial example of such a loosening was the Nuremberg Tribunal's acquittal of Grand Admiral Karl Doenitz on Count One of the Nuremberg Indictment, not on grounds of tu quoque (as is commonly if incorrectly believed) but on the grounds that International Criminal Law must have regard for the changing nature of war and an understanding of the technological constraints which may affect the manner in which the law must be applied fairly in particular circumstances.
The larger and more ferocious the war, the larger will be the number of innocent or otherwise protected persons who may well perish without breaching the rule of proportionality.
Before leaving this, let us remind ourselves (and instruct those who may be unfamiliar with these ideas) of words preceding the De Martens clauses in the Hague Conventions of 1899 and 1907 pertaining to the laws and customs of war on land:"In the view of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war so far as military necessities permit, are destined to serve as general rules of conduct for belligerents in their relations with each other and with populations." [1899]"According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants." [1907] There are therefore good grounds for saying that the rules are there to be observed unless there are compelling grounds, pertinent to international humanitarian law, to admit of exceptions. And the precise wording of the De Martens clauses?
Until a more complete code of the laws of war is issued, the High Contracting Parties think it right that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience. [1899, with my emphasis]Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. [1907, again, with my emphasis]
These, then, are the very elastic terms through which International Law provides for the progressive development of international humanitarian law AND for special or uncodified cases.
Let us be clear: Art. 6 of the London Charter (a.k.a. 'The Nuremberg Charter') is only one measure by which to determine whether any act may constitute a war crime, crime against humanity or what the framers of that Charter regarded as the 'master crime' in international law, crimes against peace. That Charter, as a document, was applied retrospectively against the Axis Powers. It is none the less important or persuasive for being retrospective. The conventions and customary international law, especially but not only those recognized at the time of the atomic bombings, must also be taken into account. It is and was well-established in customary international criminal law that in judging the legality of acts of state or acts by individuals, a tribunal, individual judge or legal commentator is not restricted by contrary provisions in the individual constitutions of states. So it is that in looking back at historical events we are fully entitled to find and apply international law as we know it to be at present, retrospectively and not just the terms of conventions, judgments and the views of jurists as they stood at the time of those events. In doing so, we may judge President Truman and the other accused on the basis that the atomic bombings of Japan, and indeed the so-called strategic bombing of Japanese cities embraced an aim to terrorize the Japanese civilian population, that there was no prior warning of the atomic bombing of Hiroshima (although thereafter Japan was put on notice with respect to any further atomic attacks), and that those responsible had an additional or alternative aim to inflict reprisals against civilians or civilian objects. All of this is prohibited now and much of it was prohibited at the time. See Arts. 22, 23(g), 25, 26 & 27 of the Hague Regulations with Respect to the Laws & Customs of War on Land (1907); prohibitions against not just 'chemical' and 'biological' weapons but also"all analogous liquids materials or devices" in the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Weapons of Warfare (1925), and Arts. 51(4), 51(5) and 57(2) of the 1977 Additional Protocol I to the 1949 Geneva Conventions.
The bombings plainly were in breach of a general prohibition that now exists against the employment of indiscriminate weapons of mass destruction, and violated a general prohibition of reprisals against civilians or civilian objects. Current US official thinking on the targeting of civilians and the rule of proportionality subject which is not inconsistent with these views on international law as it now exists may be found in the Department of Defense Report to Congress on the Conduct of the Persian Gulf War [31(3) ILM 612-44 (1992). It is important to recognize, however, that the rule of proportionality itself provides evidence of a clear understanding that the law of war does anticipate that some civilians and other protected persons inevitably are likely to perish in legitimate military operations. The larger and more ferocious the war, the larger will be the number of innocent or otherwise protected persons who may well perish without breaching the rule of proportionality, but in any individual attack (whether it be on a bridge or on a city) the rule may operate more closely than in the conduct of the whole pattern of conduct of a war in its entirety. Thus it is that an order to kill all of the inhabitants of a village in reprisal for a single terrorist act will violate the rule of proportionality even where the numbers of those slaughtered in the village may be infinitesimal in comparison with the total number of persons killed in 'regular' military operations against regular forces. Whether or not those deaths or for that matter the destruction of public and private property and places of great cultural or historical significance amount to crimes will always depend upon the particular circumstances: they are not crimes because they occur but only when there is no lawful reason or excuse for their occurrence and where the number of protected persons who are killed or where the importance of the sites destroyed is disproportionately large compared to the importance of any legitimate military target which may be subject to a lawful attack. Whether any strategic attack upon a whole city can ever be justified on the basis that it is proportionate in comparison with the strategic gains in the war as a whole is a matter on which there may remain real doubts, but where those doubts do exist and are not resolved by persuasive counsel or established precedent, then a truly impartial tribunal must favor the accused.
It is thus of limited value to examine the precise terms of the Nuremberg Charter as it defined 'war crimes.'
In one sense, our attention should not focus on the Nuremberg Charter at all. Art. 6 expressly restricts the jurisdiction of that tribunal to"the trial and punishment of the major war criminals of the European Axis countries." All tribunals, as Mr. Nobile appears to forget, are bound to observe limitations to their jurisdiction that may be found within their enabling instruments and authority. That was recognized repeatedly, and quite properly, by the Nuremberg International Military Tribunal, by its counterpart in Tokyo, by other international military tribunals of that period (including the tribunals convened by General Douglas MacArthur for the trials of Tamura Hiroshi and Toyoda Soemu), by the jurisprudence of the many, many thousands of national war crimes courts that held Axis war criminals to account for their crimes, and by the statutes or other instruments under which other German and Eastern European war crimes suspects have been tried in more recent times. These tribunals did not doubt that the conduct of the Allied Powers could be put into question: they merely recognized that they lacked any jurisdiction to do so. (Lest it be thought that the United States armed forces regarded themselves as above the law in the Second World War, it is a sobering thought that American servicemen faced some two million courts martial convened by their own side during that war.) The same principle applies in courts generally. Thus a small claims court or a traffic court cannot be asked to try a case of murder or wrongful arrest for want of jurisdiction. And a suit in the United States brought under the Alien Tort Claims Act cannot be heard by any court other than US District Courts because the ACT of 1789 says so. Those who seek to apply the Charters of the two major war crimes trials of Nuremberg or Tokyo to the conduct of any of the Allied Powers in the Second World War or in any ensuing conflict may therefore now as in the past rather miss the plot in their rush to condemn"victors' justice" (often without regard to the care and diligence actually exercised by those concerned in war crimes trials). The truth of the matter is that the purely notional jurisdiction they seek can only be founded in analogy, to the extent that they may provide persuasive evidence (which can never be absolutely conclusive, until judgment) on what the law is, and on the strength of what I have already conceded to be a universal obligation to find and uphold international law.
It is thus of limited value to examine the precise terms of the Nuremberg Charter as it defined 'war crimes.' The corresponding provisions in the Charter of the International Military Tribunal for the Far East (the 'Tokyo Trial') do not follow, in terms, those of the Nuremberg Trial: the IMTFE Charter simply refers to"Conventional War Crimes: Namely, violations of the laws or customs of war." The word" conventional" in the Tokyo Charter, indeed, may be taken to have a quite restrictive meaning:" conventional" is a legal term of art in International Law which refers exclusively to"treaty-based", consensual law, and traditionally (and often expressly within individual conventions) it has bound only those states which have specifically agreed to be bound by the precise terms of such conventions, as distinguished from" customary law" provisions which impose universal obligations on everyone.
Conventions bind in the absence of consent only insofar as any parts of them may be determined to be expressive of such a universal obligation as to apply even in circumstances that are contrary to other provisions within those same conventions. The issue of consent is therefore an important one, but in terms of jurisdiction that consent to be bound by international law refers to any time prior to trial, not necessarily to the time of the offense. Further, there is precedent for a tribunal to hold that a general requirement of consent may be set aside where such consent has been requested of and unreasonably denied by the sovereign state of the accused. A truly impartial and independent jury (and there are reasons to cast doubt upon the impartiality and independence of some of the Members of the Nuremberg and Tokyo Tribunals) might have found difficulty with the concatenation of" conventional" and" customary" law in the language of the Tokyo Charter but for the manner in which the Indictment itself was framed, and in Group III of the charges in that Indictment" conventional war crimes and crimes against humanity" are charged as offenses as defined by the Charter"AND in accordance with International Law, or EITHER of them." [My emphases.] That is much more useful language than the language of the Charters alone.
By contrast, the Nuremberg definition may have very little value at all except to the extent that its terms are expressive of customary international law. Here we have several problems. Firstly, the specifications pertaining 'war crimes: namely, violations of the laws or customs of war' in Art. 6(c) are illustrative and expressly non-exclusive:"Such violations shall include, but not be limited to …." It is therefore of no particular value to point to specific offenses such as"murder","ill-treatment","plunder of public or private property", or"wanton destruction of cities, towns or villages, or devastation not justified by military necessity".
Picking out those specific phrases will not much avail the Prosecution in our hypothetical tribunal and rather favors the Defense. It may be positively harmful to the Prosecution's case in our present proceedings to pay over-much attention to those examples:"murder", for instance, requires a criminal intent (a wilful desire to kill 'with malice aforethought' or a criminal recklessness in relation to whether the act precipitating a death was lawful or not)."Murder" (like"Manslaughter") is a killing committed without lawful excuse. 'Murder' is, indeed, a legal term that is precisely defined, and the elements in it all have to be proved - theoretically, at least, 'beyond reasonable doubt' (although one may in fact question whether that phrase really is compatible with the rules and rulings adopted at Nuremberg & Tokyo). Killings that have a complete and valid justification, such as might occur where the perpetrator had a reasonable and honest belief that he was acting in self-defense, had to kill or take action that foreseeably might result in killing someone in order to prevent loss of innocent life, or pursuant to a lawful order must be found Not Guilty.
Similarly, the Nuremberg Charter's words"wanton destruction" and"devastation not justified by military necessity" are expressive of general principles in international criminal law that wartime destruction or devastation which is NOT"wanton" (that is 'motiveless', 'arbitrary', 'random', 'senseless' or 'unreasonable') or which falls into one of the very rare situations properly deemed"justified by military necessity" is lawful. This, in fact, imposes a fairly high threshold, for before culpability can be proved"beyond reasonable doubt" the tribunal must determine not only that the wartime destruction or devastation took place (an easy enough thing in the circumstances) but also be sure that no"reasonable person could come to any other conclusion than that the accused must have known" that the destruction or devastation was unlawful by reason of being senseless, arbitrary, motiveless, unreasonable and at the same time not legally"justified by military necessity." It will at once be evident that on this strictly legal basis the defendants have much in their favor if the proceedings are to be tried by a truly independent and impartial tribunal.
WE ARE ENTITLED TO TAKE INTO CONSIDERATION IN TRUMAN'S DEFENSE ...
Having regard for the lawful purpose of bringing about an end to the war and its suffering; for the wholly admirable objective of doing so with a minimal expenditure of human lives, for expert advice given to the President in June 1945 (that some 20,000 persons were likely to die in an atomic explosion, based on a reasonable assumption that the population of a city alert to the approach of a B-29 would have time and take shelter in underground civil defense facilities); for knowledge that efforts to negotiate an end to hostilities had hitherto failed and were unlikely to succeed without a clear demonstration that nothing whatever would be gained by further enemy resistance on the ground (the only means of resistance then open to that enemy), then the Allied Powers or any of them were entitled to make a choice of reasonable and lawful means to effect that early end of hostilities (a legitimate war aim). While it is true that the estimate of 20,000 was revised upwards after the Trinity explosion in the following month, so too was the calculation of how many people would die if the Allied forces directly engaged in a land campaign on Japan's sacred home ground.
In making their calculations, the United States and their British allies were also entitled to take into consideration the certainty that were the war to continue, the Allied Powers would be forced to invade the Japanese mainland against a well-entrenched and implacable enemy willing to adopt all means at its disposal and willing to endure any sacrifice necessary to resist their invaders. An alternative, the starvation of the enemy into submission, would not succeed, if at all, short of incurring many tens or hundreds or thousands of thousands of innocent lives and untold suffering.
They were entitled to take into account the political and military consequences of failing to act sufficiently or at all in order to prevent others (the Soviet Union) from seizing the initiative through the conquest of territory and deaths of untold numbers of the enemy's forces and non-combatants alike in Manchuria and Korea.
They were entitled to take into consideration Intelligence information that they had in their possession to the effect that preparations had been made to exterminate all Allied Prisoners of War and Civilian Internees detained by the Japanese in certain eventualities which included a judgment that the prisoners would otherwise be liberated by closely approaching Allied forces.
They were entitled to take into consideration the likely consequences if news of the existence and availability of the atomic bomb as a war-winning weapon were to come to the attention the public in the USA, Britain or other Allied Powers while the Allied diplomats continued with desultory negotiations with the enemy as hundreds of thousands if not millions of men, women and children on both sides continued to die in conventional warfare. Further, it IS believed that the French, who were thought to have stumbled onto the news of the Manhattan Project, were so alarmed or antagonized by being previously excluded from knowledge of it that they had it in mind to let the Russians know, thus placing at risk the capability of the United States and the British had of determining the most opportune moment at which to make the most of the bomb's war-winning potential.
They were entitled to prefer that as high a preponderance as possible of any death and destruction necessary to bring about an end to the war should be borne by forces of the enemy rather than by the United States, its Philippine dependency and by all of the other Allied countries and possessions caught up in the fighting.
WE ARE NOT ENTITLED TO TAKE INTO CONSIDERATION IN TRUMAN'S DEFENSE ...
They were NOT, on the other hand, entitled to resort to the use of any weapon because it would trade-off the lives of Allied soldiers against the lives of protected persons (e.g., ordinary civilian inhabitants) of the adverse party. The evidence shows that in deciding whether to use the atomic bombs, the United States Government plainly did pay more attention to the potential savings in Allied soldiers' lives than to the potential savings on ALL sides. However, they did consider the latter, too.
It is too easy for us to dismiss these thoughts out of hand. Having absorbed the lessons taught by the determination shown by the Japanese who fought to the death in the complicated tunnelling networks on Saipan and Okinawa, and having watched in horror as huge numbers of civilians perished rather than fall into Allied hands, Western observers and policymakers alike scaled up their estimates of what an invasion of Japan Proper might entail. These were serious months. Allied war planners seriously contemplated a resort to use of Allied chemical warfare on a scale difficult for us to conceive: there were evidently serious proposals to lay down a blanket of mustard gas at the rate of as much as 200 tons per square mile, employing B-29 aircraft if necessary, on chemical warfare missions against Japanese urban populations if the war continued into the spring of 1946, by which time it was anticipated that there would be no more targets in Japan left to pound with high explosives and incendiaries. However much we may deplore such barbarity, and however much they violated the 1925 Geneva Protocol on gas warfare, we have to admit that memories of the widespread use of gas in the First World War were strong and that Allied planners knew full-well that the Japanese had resorted to the use of gas and bacteriological weapons before and during the Greater East Asia and Pacific Conflict.
The cost in human terms of Japanese resistance in Okinawa remains a matter over which there continue to be disputes about numbers but not about the general lessons it provided: it is conservatively said that 110,000 Japanese servicemen sacrificed their lives in the defense of Okinawa: only 7,400 were taken prisoner. The civilian dead on Okinawa numbered perhaps as many as 94,000. In Japan Proper, however, the Japanese High Command expected to call upon 2,350,000 soldiers, 2,250,000 Army workers, 1,300,000 Navy workers, 250,000 special garrison personnel, and a national volunteer militia of 28 million, including the elderly, the infirm, women and children, to defend their Homeland at all costs. Thus when we as officious bystanders look at the reasonableness of the decision to drop the bomb, or when we have regard to the facts known to President Truman, we properly must take into account far more than do those opponents of his decision who commonly refuse to look beyond the appalling nature of the injuries and deaths suffered by the men, women and children, without distinction, who were within range of the Hiroshima and Nagasaki bombs.
These, in a true sense, were political choices, and they are relevant to our appreciation of what might have been lawful in the particular circumstances. By analogy to the law of blockade and indeed the traditional law governing reprisals, the lawfulness of what the Allied Powers had in contemplation and executed was at least in part determined by the effectiveness of the measures adopted in bringing about a desired result that was lawful. International Law is quite clear that the continuance of an ineffective blockade, one that causes suffering without producing the desired result, is unlawful whereas an effective blockade lawfully interferes with the countervailing principles of freedom of the seas and freedom of neutral commerce. So it is as well with the illegality of reprisals that no reasonable person would believe are likely to make an adverse party desist from the illegal acts which have prompted the reprisals (and which in turn are considered lawful only if the offended state has requested and been refused redress by the delinquent state). These concepts may be difficult for non-lawyers to get their heads around, but they are well-established in the jurisprudence of customary international law and well-supported by legal authorities.
The simple fact that the atomic bombings caused a great deal of death and destruction should not blind us to the fact that death and destruction are inseparable from the conduct of war. In the end, the prohibitions against the use of weapons of mass destruction are based upon a rebuttable presumption that less destructive means may be found to bring about an end to hostilities by lawful means. In the main, that presumption seems well-justified by human experience, and it is right that it should not in any way be linked to the question of Which side shall prevail in the war.
The use of prohibited means of warfare only in order to protect or ensure a victory by one side over the other, or even to ensure that the offending party shall not be defeated, cannot be considered lawful or excusable: to do so would be contrary to equity, justice and the dictates of humanity. But in the present case we are faced with the incontrovertible fact that the use of the atomic bombs was by the British and Americans thought likely to end the war at a small fraction of the human misery, destruction and death that likely would have attended any other means at hand.
I have seen no evidence that persuades me that President Truman, in his capacity as in effect the sole decision-maker (although supported in that by the United Kingdom Government) had had a true and honest belief that an explicit prior warning or a practical demonstration of the bomb on some isolated coral atoll had a high likelihood of succeeding in bringing about an end to the war without requiring any attack upon a Japanese populated area. But my difficulties over the case for the Prosecution goes further than that: I have seen no evidence, even with the benefit of hindsight, that persuades me beyond reasonable doubt that the Japanese Government would not have continued fighting even if they had been given the benefit of such a prior warning or practical demonstration on an isolated test site. Moreover, if such a warning or demonstration had been accompanied by a softening of the Allied surrender terms, it is my belief that public opinion in the USA or elsewhere would have regarded the outcome as unacceptable. In the long run, I believe that would not have produced a stable and durable peace.
Given the facts that the number of atomic weapons available was extremely limited, that the number of casualties was thought likely to be relatively modest in comparison with the alternatives, that the awe-inspiring and incontrovertibly spectacular nature of the weapon was likely to be more important than the death toll or destruction in attaining the objective particularly when closely-coupled to a propaganda campaign intended to hype its revolutionary, world-changing character - then I believe we are driven, unhappily, to a conclusion that on the first, singular occasion, the bombing of the city of Hiroshima, a city which all visitors to the Hiroshima Memorial will know had always been in the vanguard of Japan's wars against hostile forces in terms of recruitment, training, armaments production and military culture, has to be seen as justifiable in the circumstances, especially since the Allied Powers had a genuine belief that the Japanese and only the Japanese were responsible for initiating the war in the first place..
In going further, to examine the legality or otherwise of the second atomic bombing, we have to recognize that Nagasaki was a city of a very different character from Hiroshima. In significant ways that do not affect in the slightest the legality of its selection as a potential target of attack, Nagasaki was regarded as an attractive place to persons who held its religious and cultural associations with the West in high regard. Those associations did not influence the selection of Nagasaki as an acceptable target when the preferred target, the Kokura arsenal, was obscured by clouds. The perceived 'military necessity' was for the attack to take place over one of the few Japanese cities that had not yet been gutted by Allied incendiary attacks and conventional high explosive bombs, a necessity that remained closely linked with the need to demonstrate to the Japanese more than anyone else the terrible and irresistible power of the new weapon, something that could tip the balance in favour of the peace-party in the highest policymaking circles of the Japanese Government. It is not right to regard Nagasaki as having been a mere target of opportunity. It was on a shortlist because it met criteria which were thought would bring home to Japanese policymakers that they must agree to an end to the war on terms that would pave the way to a genuinely peaceful future. Was this one of the truly rare occasions where 'military necessity' can be claimed to operate as a complete defense rather than in mitigation of the guilt of the accused? Perhaps, as we shall see.
We also have to recognize that if the dropping of the first bomb failed to bring about a prompt decision to surrender (and we know that the Japanese did give no sign of caving in during the interval before the second bomb was prepared, flown out from Tinian at great hazard to all concerned, and dropped over Nagasaki), then unless it seemed likely that by giving the Japanese authorities more time to study the effects of the Hiroshima bomb the Japanese decision-makers would rapidly agree to give up, then the second bomb was probably justifiable, too.
So what do we know about what Allied Intelligence thought the Japanese would find from the effects of the first bomb. Well, the device had functioned: the bomb had worked. And the spectacular luminescence had fully met American and British expectations. But early Allied estimates of the death toll had come far short of what previously had been predicted. According to Richard Rhodes,"The U.S. Army Medical Corps officer who proposed the joint American-Japanese study to Douglas MacArthur thought as late as August 28 that 'the total number of casualties reported at Hiroshima is approximately 160,000 of which 8,000 are dead.'" The actual number of dead was, we now know, far higher then and continued to rise, to rival and then surpass the carnage inflicted in the first and greatest of the firebombings over Tokyo, but in legal terms the real numbers have less importance where the crime at issue is plainly not just a matter of strict liability undeflected by any need to prove any criminal intent.
What we are looking at here is evidence that the accused believed that what they were doing was Wrong, that they had (or ought to have had) a"guilty mind." And that is plainly not found either in the planning which preceded the first of the attacks or in those early reports on Hiroshima which preceded the decision to send out a second strike, against Nagasaki. Instead, we can see how after Hiroshima the United States and the British who concurred were driven inexorably and reasonably to the conclusion that a further demonstration was 'necessary' to save a worse calamity, an unnecessary prolongation of the war, one that might make it 'unnecessary' to explode their third and last available atomic bomb over Tokyo itself.
Against the background of the horrific number of deaths, terror and loss of territory that Japan was suffering as the Soviet invasion gathered momentum and rolled across Manchuria and headed for Korea and the Great Wall of China, the second bomb, coupled with the Soviet invasion, did prove decisive. In the end, it can scarcely be doubted that the two bombs, together with efforts to forestall any need for a longer Soviet campaign that might have continued across the whole of Korea and deep into China Proper, left a smaller toll of death and destruction than an invasion of Japan Proper, Taiwan or any of the alternative strategies available to the Allied Powers.
The final mortality rate of something like 54% suffered by the civilian and military denizens of Hiroshima and Nagasaki was perhaps seven to ten times the death rate inflicted upon Tokyo in the great incendiary attack of 9/10 March 1945, the worst of the American conventional air raids. Even when the extent of that horror was fully known, it did not seem a disproportionate sacrifice to bring about. The atomic bombs were thought by most people, however imperfectly, to have ended the war -- the end of a war in which perhaps as many Indonesians and Malayans and a hundred times more Chinese civilians had perished; the end of a war which had scarred Allied prisoners to an extent immeasurably greater than the suffering inflicted upon British, Commonwealth and American citizens taken captive by Nazi Germany; the end of a war in which the 110,000 Japanese servicemen and perhaps 94,000 civilians who died on Okinawa alone were believed at the time to outnumber deaths inflicted in the bombing of Hiroshima, by twenty-five times, and where the 20,365 Americans who perished in securing that one island then were believed to be nearly two and a half times as many as the 8,000 people who, according to expert opinion in the immediate aftermath of the war were thought to have lost their lives in Hiroshima.
If we apply, as we should, International Humanitarian Law as it exists today, then strictly speaking the two atomic bombings were prima facie war crimes and crimes against humanity contrary to the conventions, but in the context of time and place, even without relying upon the dud principle of non-retroactivity, on this occasion it would mock equity and justice to hold the perpetrators of those crimes strictly to account.
Their actions led to or made possible the victory of the Allied Powers, but that does not excuse their conduct: it would be a classic misapplication of the doctrine of 'military necessity.'
The decisive point that does tip the balance for me is that these terrible deeds which led to what has proved to be a durable peace were efficacious in doing so at far less cost in human suffering on BOTH sides than would have been any policy that would not have involved conduct generally prohibited in international law. In the end, we must also have regard to the fact that for 'practical' reasons many other previous prohibitions relating to armed conflict had slipped, with impunity for perpetrators and with far less reason or excuse on humanitarian grounds, since the propounding of the Hague Rules and other conventions of the previous fifty years. In my opinion, by analogy, the 'without lawful excuse' proviso in the event applies here to the atomic bombings in exactly the same way as it does in the case of the lawfulness of only an 'effective' and also 'reasonable' blockade. This may put the argument of 'military necessity' on an entirely different footing, but the doctrine of 'military necessity' is not entirely removed from the lexicon of international law, it is an arguable case, and given the special circumstances where the certainty is that vastly more people would have died if the war had continued absent the atomic bombings, the defendants therefore are entitled to the benefit of doubt.
To absolve the accused the Defense does not have to prove beyond reasonable doubt that the Japanese Government would have laid down their arms without the Allied use of the atomic bombs even if offered revised peace terms along the lines of the final compromise to which both sides agreed after the use of the atomic bombs: it is enough that the Defense has shown that there is a sufficiency in the evidence we now have on the Japanese side to suggest that the Japanese Government remained divided and that some members of it were determined to fight on, that the Soviet entry into the war against Japan had been foreseen and had not forced the Japanese to give up, that much more damage had to be done to bring the war to an end. In these circumstances the Defense may argue it is entitled to an exceptional reliance upon the doctrine of military necessity.
Any judge in a criminal case must have regard not only to the lines of arguments offered by the Defense but also to other arguments upon which the Defense has not relied but which in the opinion of the judge may avail as a matter of law. In the interests of justice, however, a judge is not entitled to do the same on behalf of the Prosecution which assumes the whole of the legal and evidentiary burden to prove its case beyond reasonable doubt.
For the reasons stated, and notwithstanding the many defects in the arguments put forward by the Defense, and without condoning or approving the conduct of the United States Government or of the several accused, in my judgment the Prosecution's case is unproved beyond reasonable doubt against Harry S. Truman and his co-defendants on the charges of war crimes and conspiracy to commit war crimes laid against them connected with the atomic bombing of Hiroshima and Nagasaki. They are therefore acquitted on all charges.
About John R. Pritchard The author is an historian and international criminal lawyer who for more than 30 years has specialized in the misconduct of war and on history and jurisprudence of war crimes trials. He earned his BA degree in History at the University of California, his MA and PhD (Econ.) in International History at the London School of Economics (University of London), and his LLB in Law at the University of Kent at Canterbury before taking the Bar Vocational Course at the Inns of Court School of Law in London. He has published widely in the fields of twentieth century international history and on the history and jurisprudence of international criminal law.
He took the place of the late Guy Wint in collaborating with Peter Calvocoressi on the revised edition of Total War: The Causes & Courses of the Second World War (1989, 1995 edns., now relaunched as The Penguin History of the Second World War (1999, 2001), its publisher's flagship work on the subject (on which he was responsible for the half of the book relating to the Great East Asia and Pacific Conflict). He initiated and carried out the largest research publications project ever undertaken by the London School of Economics, the Tokyo War Crimes Project (1973-1987), which produced an annotated edition of The Complete Proceedings of the International Military Tribunal for the Far East, including the Judgment, Separate Opinions and Proceedings in Chambers, in a compact facsimile of 22 volumes (1981), and a 5-volume Index and Guide series (1981-1987) to accompany that collection. He is presently completing a revised edition of that work, reformatted, amended and extended as The Tokyo Major War Crimes Trial: The Records of the International Military Tribunal for the Far East with an Authoritative Commentary and Comprehensive Guide (1998-), of which 108 of the 124 projected volumes have now appeared.
He is co-editor of a three-volume series International Humanitarian Law now in press, and has written a seminal work on the history of two international military commissions on Crete, which established an effective international criminal jurisdiction over crimes against humanity relating to intercommunal massacres on Crete in 1898, half a century before Nuremberg and Tokyo.
For the past three years he has also been senior editor of an international project to publish the complete records of the Allied Trials of Italian War Criminals and is expecting in the next few years to publish a further large-scale work in 98 volumes, British War Crimes Trials in the Far East comprising the complete records of more than 600 defendants in 165 trials (well over half of those tried by the British in that theatre of war) together with a major collection of essays and four volumes of finding aids (on which he has been engaged since 1990).