Blogs > Liberty and Power > The Atomic Bombs and War Crimes

Aug 7, 2004

The Atomic Bombs and War Crimes


by Liberty and Power



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chris l pettit - 8/11/2004

Dr. Dresner...fascinating and insightful points as always...

given the dislike of couterfactuals...

I am wondering if you are approaching the Nuremburg and Tokyo tribunals through just historical analysis? In the Nuremburg Tribunals, much was written and a new legal standard was established regarding the targeting of civilians and cities, which is why the Geneva Conventions were so quick to follow. From a strictly legal analysis, Dr. Beito is right when he cites the victor's justice argument to form his counterfactual, as that is exactly what the tribunals were. Do we want to look at this as an independent historical event or do we want to look at the ramifications for international law and the protection of civilians from "wanton destruction?" I am trying to find a meeting of the minds per se...

Your quote of the Indian judge is very intriguing when considered in terms of the victor's justice argument, which his quote strengthens the case of. Did the tribunal in Tokyo acknowlege that it was simply a product of the victorious powers and therefore try and phrase language in terms that would not implicate their war crimes? If this is so, how much validity does the trial hold? If it does hold as a legal standard we should be able to utilize the judgment to look at Allied war crimes and look at whether boming would fall under those war crimes. In current terms, the bombing of Tokyo and Dresden are recognized as crimes against humanity in terms of the Rome Statute of the ICC as well as those definitions laid out in the ICTR and ICTY. Do we need to view this in the light of legal historical development? how do we work this within the counterfactual...or is this why counterfactuals are so difficult?

I happen to support Dr. Beito's argument and find that it is darn near impossible to actually defend the use of the bomb in anything but political frameworks based on realpolitik. I would recommend Judge Weeramantry's dissent in the Legality of Nuclear Weapons judgment for a thorough analysis and discussion from the legal and ethical side. he also touches upon a very similar counterfactual and does a great job with it. The decision is available at www.icj-cij.org or on the WICPER website that I list.

CP
www.wicper.org

Jonathan Dresner - 8/9/2004

We did prosecute Japanese for the Nanjing Masscre, and if Japanese or Germans had used an atomic bomb against an urban target without either provocation or response by us and we won anyway, we might have prosecuted them for it. But the prosecutions you reference were different for two reasons: first, there was already international law governing the treatment of civilians by ground troops, which was blatantly violated at Nanjing; second, the Nanjing incursion was linked to the narrative by which we charged Class A war criminals with 'conspiracy to commit aggressive warfare' -- in other words, we didn't prosecute Nanjing atrocities for themselves, but because they were linked to the prosecutorial 'theory of the crime.'

Makes it hard to draw strong analogies from it to hypotheticals. Maybe I'm just too close to the details, though.

David T. Beito - 8/9/2004

You know more than I do, but, leading aside the technology issue, didn't we prosecute Japanese soldiers and politicians for similar acts of indiscriminate killing of civilians at Nanjing?

Jonathan Dresner - 8/8/2004

I think whether we prosecuted them would depend on what we had done. If they used nuclear weapons first, but still lost (and how plausible is that?), then we might well charge them (though we might not if, as with 'conventional' aerial bombardment, we did the same subsequently); if they used them in response to our using them, we'd have no grounds.

Yes, we could make a distinction between the firebombing and the atomic bombing based on the use of radioactivity as a weapon, and based on the singularly quick and inescapable nature of the devastation, I suppose. But the air war in WWII did not significantly distinguish between civilian and military and economic targets: it was a total war in which everything that could be hit was (with the notable exception of Kyoto, for which we are eternally grateful). The responsibility of a soldier to aim and fire at legitimate targets was not, at that time, extended to aerial warfare.

It's a nice moral parable, but it's a weak counterfactual, in my view.

David T. Beito - 8/8/2004

Jonathan:

I am not sure if we prosecuted anyone for using particular technologies as such. However, because of the uniqueness of A Bomb technology, and the fact that by its very nature a single bomb killed so many civilians on a mass scale, it is hard to imagine that the U.S. would not have charged the Germans and Japanese with war crimes had they used such a weapon on New York or Chicago.

You know more about this than I do but, as you state, several defendants were prosecuted for crimes against humanity and war crimes which included "wantonly, destroying cities, towns and villages beyond any jusification of military necessity." The bombing at both Nagasaki and Hiroshima would certainly seem to clearly qualify as crimes under this standard. The websites mention the Rape of Nanjing as an example of crimes at the Tokyo trials. Is it a pretty close parallel?

http://www.wordiq.com/definition/Nuremberg_Principles

http://www.arts.cuhk.edu.hk/NanjingMassacre/NMTT.html

You make a good point about the judges comments on Dresden but based on my reading he court had entirely clear standards on this question or was very consistent.

David T. Beito - 8/8/2004

Shocked? You've met Ralph, haven't you?

Jonathan Dresner - 8/8/2004

I'm not a defender of the bomb (though I have occassionally risen in defense of those who dropped the bomb against bad history) but I'm not entirely conviced that Szilard is right.

It would be a little touchy to define the atomic bombings as war crimes without similarly criminalizing the 'conventional' firebombings of Tokyo, Dresden, etc. which killed almost as many people and did almost as much damage, though without the uniquely horrific radiation poisoning effects. If memory serves, we didn't prosecute any Germans or Japanese for using new technologies of war, only for using old, already-banned chemical weapons, and violations of the rules of war re:POWs. The Nuremberg trials included the Crimes against Humanity, and the Tokyo trials included 'aggressive war' as a distinct charge, but methods of warfare were not at issue, because, as the Indian judge in Tokyo pointed out, the Allies committed plenty of atrocities in that regard.

I agree that the atomic bombings should be defined as terroristic and unacceptable against mixed targets (http://hnn.us/blogs/entries/6628.html), but I don't stop there.

Roderick T. Long - 8/8/2004

> The Ludwig Von Mises Institute
> has reprinted selections from an article
> on the dropping of the atomic bombs on
> Hiroshima and Nagasaki by my good
> friend Ralph Raico.

I'm shocked to hear that Ralph Raico dropped atomic bombs on Hiroshima and Nagasaki! Just when you think you know a guy ....