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Mutilation of Japanese war dead

Some dead Japanese were desecrated and/or mutilated, for example by urinating on them, shooting corpses, or taking Japanese body parts (such as ears or even skulls) as souvenirs or trophies.[50]

The Allied practice of collecting Japanese body parts occurred on "a scale large enough to concern the Allied military authorities throughout the conflict and was widely reported and commented on in the American and Japanese wartime press."[51]

The collection of Japanese body parts began quite early in the war, prompting a September 1942 order for disciplinary action against such souvenir taking.[52] Harrison concludes that, since this was the first real opportunity to take such items (the Battle of Guadalcanal), "[c]learly, the collection of body parts on a scale large enough to concern the military authorities had started as soon as the first living or dead Japanese bodies were encountered."[53]

When Japanese remains were repatriated from the Mariana Islands after the war, roughly 60 percent were missing their skulls.[54]

In a memorandum dated June 13, 1944, the U.S. Army Judge Advocate General (JAG) asserted that “such atrocious and brutal policies,” in addition to being repugnant, were violations of the laws of war, and recommended the distribution to all commanders of a directive pointing out that "the maltreatment of enemy war dead was a blatant violation of the 1929 Geneva Convention on the sick and wounded, which provided that: After every engagement, the belligerent who remains in possession of the field shall take measures to search for wounded and the dead and to protect them from robbery and ill treatment.”

These practises were in addition also in violation of the unwritten customary rules of land warfare and could lead to the death penalty.[55] The U.S. Navy JAG mirrored that opinion one week later, and also added that “the atrocious conduct of which some US personnel were guilty could lead to retaliation by the Japanese which would be justified under international law”.[55]
[edit] Bombing of Hiroshima and Nagasaki
Main article: Atomic bombings of Hiroshima and Nagasaki

In 1963, the Atomic bombings of Hiroshima and Nagasaki were the subject of a judicial review in Ryuichi Shimoda et al. v. The State.[56] The District Court of Tokyo declined to rule on the legality of nuclear weapons in general, but found that "the attacks upon Hiroshima and Nagasaki caused such severe and indiscriminate suffering that they did violate the most basic legal principles governing the conduct of war."[57] Francisco Gómez points out in an article published in the International Review of the Red Cross that, with respect to the "anti-city" or "blitz" strategy, that "in examining these events in the light of international humanitarian law, it should be borne in mind that during the Second World War there was no agreement, treaty, convention or any other instrument governing the protection of the civilian population or civilian property." [58] The possibility that attacks like the Hiroshima and Nagasaki bombings could be considered war crimes is one of the reasons given by John R. Bolton (Undersecretary of State for Arms Control and International Security (2001-2005) and U.S. Permanent Representative to the United Nations (2005)) for the United States not agreeing to be bound by the Rome Statute of the International Criminal Court.[59]
[edit] Rape
Main article: War rape

It has been claimed that some U.S. soldiers raped Okinawan women during the Battle of Okinawa in 1945. There were 4,336 reported rapes during the first 10 days of the occupation of Kanagawa prefecture.[60]

Okinawan historian Oshiro Masayasu (former director of the Okinawa Prefectural Historical Archives) writes based on several years of research:

Soon after the U.S. marines landed, all the women of a village on Motobu Peninsula fell into the hands of American soldiers. At the time, there were only women, children and old people in the village, as all the young men had been mobilized for the war. Soon after landing, the marines "mopped up" the entire village, but found no signs of Japanese forces. Taking advantage of the situation, they started "hunting for women" in broad daylight and those who were hiding in the village or nearby air raid shelters were dragged out one after another.[61]

However, despite being told by the Japanese military that they would suffer rape, torture and murder at the hands of the Americans, Japanese civilians "were often surprised at the comparatively humane treatment they received from the American enemy."[62][63] According to Islands of Discontent: Okinawan Responses to Japanese and American Power by Mark Selden, the Americans "did not pursue a policy of torture, rape, and murder of civilians as Japanese military officials had warned."[64] 　

Ryuichi Shimoda v. The State
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Ryuichi Shimoda v. The State

Ryuichi Shimoda et al. v. The State was a case brought before the District Court of Tokyo 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 US government under the Treaty of San Francisco.
Contents
[hide]

* 1 Background
* 2 The ruling
* 3 Aerial bombardment
* 4 Footnotes

[edit] Background

Ever since the obliteration of Hiroshima, legal debate over the legality of the action began. Allready on August 10, 1945, the Japanese government addressed a communication to the International Committee of the Red Cross, asking to denounce the US government as performing a crime under international law. Following surrender and the landing of US occupation troops in Japan, it was Prime Minister Naruhiko Higashikuni who offered the US government to drop its demand to try Japanese war criminals, and in exchange the Japanese government will not make any complaints in the media or in legal institutions about the use of the nuclear weapons.[1] During the Tokyo War Crimes Trial, some of the defence lawyers tried to convince the International Military Tribunal of the Far East to launch a legal investigation into the matter of the legality of the first use of nuclear weapons, but their motions were ignored.[2] One of these defence lawyers, Shoichi Okamoto, continued to deal with the issue even after the trial was concluded. In February 1953, he published a booklet titled "Genbaku Minso Wakumon (Questions and Answers on the Civil Lawsuit over the Atomic Bombings)", in which he called upon individuals in Hiroshima and Nagasaki to take a legal action against the US government within the US legal system.

Okamoto’s plan met great deal of opposition within Japanese society and even in Hiroshima and Nagasaki. Shinzo Hamai, Mayor of Hiroshima at the time, opposed the plan on grounds that the US legal system was not favorable to such actions. As a result, okamoto gave up the notion of trying the case in a US court, and decided instead to seek action in the Japanese legal system. In cooperation with local organizations in Hiroshima and Nagasaki, a group of five persons was selected for the purpose of making the motion in a Japanese court. Shimoda, the leader of the group, came from Hiroshima and was then 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.

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.
[edit] The ruling

On 7 December 1963, in Ryuichi Shimoda et al. v. The State the atomic bombings of Hiroshima and Nagasaki were the subject of a Japanese judicial review .[3] On the 22nd anniversary of the attack on Pearl Harbor, the District Court of Tokyo declined to rule on the legality of nuclear weapons in general, but found that "the attacks upon Hiroshima and Nagasaki caused such severe and indiscriminate suffering that they did violate the most basic legal principles governing the conduct of war."[4] In the opinion of the court, the act of dropping an atomic bomb on cities was at the time governed by international law found in Hague Convention of 1907 IV - The Laws and Customs of War on Land[5] and IX - Bombardment by Naval Forces in Time of War[6], and the Hague Draft Rules of Air Warfare of 1922–1923[7] and was therefore illegal.[8][9]

It was reported in the Hanrei Jiho, vol. 355, p. 17; translated in The Japanese Annual of International Law, vol. 8, 1964, p. 231.[10] that the facts were that

The plaintiffs, Japanese nationals, were all residents either of Hiroshima or of Nagasaki when atomic bombs were dropped on these cities by bombers of the United States [Army] Air Force 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) that they suffered injury through the dropping of atomic bombs by members of the [Army] 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 President, Mr. Harry S. Truman; (d) 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 (e) 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.
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 Constitution, 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.

and that it was held:

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 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.

[edit] Aerial bombardment

The judgement draws several distinctions which are pertinent to both conventional and atomic aerial bombardment. On the basis of international law found in Hague Convention of 1907 IV - The Laws and Customs of War on Land[5] and IX - Bombardment by Naval Forces in Time of War[11], and the Hague Draft Rules of Air Warfare of 1922–1923[12] the Court drew a distinction between "Targeted Aerial Bombardment" and indiscriminate area bombardment, that the court called "Blind Aerial Bombardment", and also a distinction between a defended and undefended city.[13] "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."[14] The court ruled that blind aerial bombardment is only permitted in the immediate vicinity of the operations of land forces and that only targeted aerial bombardment of military installations is permitted further from the front. It also ruled that the incidental death of civilians and the destruction of civilian property during targeted aerial bombardment was not unlawful.[15] The court acknowledged that the concept of a military objective was enlarged under conditions of total war, but stated that the distinction between the two did not disappear.[16] The court also ruled that when military targets were concentrated in a comparatively small area, and where defence installations against air raids were very strong, that when the destruction of non-military objectives is small in proportion to the large military interests, or necessity, such destruction is lawful.[15] So in the judgement of the Court, because of the immense power of the atom bombs, and the distance from enemy (Allied) 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".[17]
[edit] Footnotes