Hiroshima and Nagasaki: war crimes?

by Tony D'Amato

Should President Harry S Truman be regarded today as a war criminal for ordering the atomic bombing of Hiroshima and Nagasaki sixty years ago? If history indicts him for the two events, I would argue that as to Count Two, the bombing of Nagasaki, he was clearly guilty and would have deserved the death sentence. The horror of the initial bombing of Hiroshima on August 6, 1945, has in the public mind all but obscured the follow-up bombing of Nagasaki three days later.

I wrote in 1971 that the Nagasaki bombing “had no military justification and was not needed, after Hiroshima, to ‘demonstrate’ the efficacy of the new weapon.” [The Concept of Custom in International Law 117 (1971)] Although a vast amount of research and writing about the decision to drop nuclear weapons on Japan has come out since I wrote those words, I’ve seen nothing that would challenge my conclusion. Of course if readers of this blog know differently, I hope they would give us all the benefit of their comments.

Not only have I not seen any legal argument that tries to justify the Nagasaki bombing, but there is also a dearth of historical explanation why it occurred at all. I have my own theory. By 1945 the United States had produced three nuclear weapons: two uranium and one plutonium bomb. The first uranium bomb was secretly dispatched to the Pacific theatre before the second one was tested on July 16, 1945, at Alamogordo Range 230 miles south of Los Alamos, New Mexico. Three weeks later the remaining uraniuim bomb was detonated over Hiroshima. My theory, terrible as it sounds, is that (a) we dropped the plutonium bomb on Nagasaki to see if it would work—if it hadn’t exploded, nothing would have been said; (b) by dropping a second bomb so quickly after the first one we would show the Japanese that we would be merciless until they surrendered unconditionally; and (c) the second bomb would lead the world to think that we had many others where that one came from.

As to the legality of the bombing of Hiroshima, there are endless arguments, justifications, excuses, condemnations, and plain misstatements. The most prominent justification is the argument of military necessity: dropping the bomb shortened the war and saved many lives. The best contrary argument, in my opinion, is that the peace terms informally (but very seriously) offered by Japan in June 1945 did not materially differ from the peace terms we actually accepted from Japan in August right after we dropped the bombs.


19 Responses

  1. In terms of Hiroshima I would accept the military necessity argument to some extent but surely the bombing would not pass a proportionality test as there was no attempt to minimise civilian casualities? Hiroshima was, to my mind at least, as much a human experiment as it was an act of war, and that is what is most reprehensible of all to some extent.

    However, even if Hiroshima can be legally excused by the military necessity argument, there can, as you rightly say, be almost no excuse or viable explanation for the Nagasaki bombing.

    I was wondering – what do you think are the realistic odds for the use of a nuclear bomb within the next fifty years??

    Fiona de Londras
    Dublin, Ireland

  2. Thank you for yet another provocative post. I want to comment, but I have to be careful here, since I live in The Netherlands and, given the political climate here, law enforcement authorities seem to be very watchful when it comes to (i) offending (former) heads of state which we consider to be friends and (ii) denying genocide (and the like).

    So, both answering your question in the affirmative and in the negative may cause some problems. As I am not an expert in Dutch criminal law, I better be careful.

    Therefore, I just want to try to look at your question through a mirror and ask something about proportionality.

    In a previous comment I mentioned the firebombing of 67 Japanese cities prior to the bombing of Hiroshima and Nagasaki. Bombing 69 cities in a row seems terrible. And I guess it is horrible.

    On the other hand, it could be argued that it took Japan at least 67 cities to be firebomb and two cities to be hit by an atomic bomb, before it could decide to surrender. What about the Japanese leaderships’ responsibility vis-à-vis their citizens? Is this something which is taken into consideration when judging charges on war crimes?

  3. There may well have been some element of doubt at the time the plutonium bomb was dropped that it would work but I don’t think you can go so far as to describe the desire to test it as a motivation for dropping the bomb. A test back in the Almogordo range would have answered the question as to whether plutonium would explode equally well.

    Therefore, I don’t think it is really possible to say that the bomb was dropped over Nagasaki to see if it worked. It would be more accurate to say they dropped it hoping it would work.

  4. This historical revisionism is almost enough to make me ill. The military necessity of the bombing is clear. How long did it take Japan to surrender AFTER the bombing of Nagasaki? Five days, and that was only after the emperor intervened and overruled the military junta running the country. The Japanese government was not prepared to surrender even when two entire cities had been incinerated (and let’s not forget the firebombing of Tokyo). Nor was the glorious emperor ready to surrender after the destruction of Hiroshima.

    As for the moral grounds for the bombing, Truman’s first, foremost, and perhaps ONLY moral responsibility is to Americans. An American President is elected and entrusted by the people with the preservation of our US rights and liberty. As much as international lawyers like to pretend that international law has the same moral standing as domestic law, it doesn’t. IL has no process of legislative creation (it’s made by treaty or custom), no binding adjudication (save the ICC, which didn’t exist during WWII and to which the US is not party anyway) and has no enforcement powers (save the use of force by a state). Without these components, law is meaningless.

    The US was in a bloody, vicious war, started by an enemy who showed no mercy and violated what laws existed whenever possible and convienent. Truman’s moral and legal duties were to do whatever was necessary to end the war as quickly as possible and protect American and Allied lives.

  5. Do you really believe that a world leader who has legions of soldiers, ammunition and nuclear power available to them has a moral responsibility only to their own people?

    I find that frankly disturbing

    As for your contention that international law has less moral and legal force than domestic law, it is law formed by mutual consent which arguably gives it an even greater moral legitimacy than domestic law.

  6. Professor D’Amato and his sympathizers can regurgitate this issue until the cows come home, but the fact is dropping the bombs did factor in ending the war, were believed by most troops (including my grandfather who fought with distinction in the Pacific, and my father, who in the 50’s served with the U.S.A.F. for two years while stationed in Nagoya, Japan [Nagasaki’s alternate target city]) as having saved lives. While dropping the atomic bombs were certainly, in part, punitive retribution as well as a signals to the Russian to stay out of the Japanese theatre and back-off in Europe their use can not rise to the level of “war crimes” when viewed in the entire context of the war.

    That we commonly embrace the proportionality concept *now* is hardly justification for retroactively applying it to WWII conduct — and curiously D’Amato, at least here, appears to uniquely single out only U.S. actions for designation under “history’s worst” war crimes.

  7. The bombings of Hiroshima and Nagasaki were *both* war crimes, among the greatest in history. See the 1996 ICJ Nuclear Weapons Decision for a discussion of the fundamentals of war crimes law. It’s irrelevant whether it helped the US achieve its military goals at lower cost (the meaning of the “necessity” claim in this context). That kind of reasoning would negate almost all war crimes law.

    The dropping of the bomb was legally and morally inexcusable. Moreover, arguments for the bomb don’t make sense even on their own terms. People say it was necessary to avoid a US invasion of Japan. But the US didn’t *have* to invade Japan; that was its choice. No one was holding a gun to the US’ head saying, invade Japan or incinerate Hiroshima and Nagasaki.

    In any event, the invasion wasn’t slated to begin until November 1 at the earliest. The US had three more months to exhaust all alternatives. It didn’t use those three months to explore every other means of obtaining surrender. Instead it just dropped the bomb.

    Jamie Mayerfeld

  8. Perhaps my (anonymous above) comment was understood…Mr. Mayerfield claims my line of reasoning undermines all war crimes law. Yes, indeed, that’s EXACTLY what I was arguing. The ICJ may have issued a decision on the legality of nuclear weapons, but the US does not recognize the compulsory jurisdiction of the ICJ (nor any other international “court.”) Thus, the ruling has no standing, and is not binding international law for the US. And here is the problem with international law…it does not bind the powerful. It is not law in any sense of the word. States can choose which laws to follow and which to not and there is no enforcement other than when states decide to take the law into their own hands.

    As for Mr. Mayerfield’s claim that the US “just” dropped the bomb rather than exhausting all options, I’m wondering what other options he believes the US should have tried. The negotiations with the junta and the emperor had broken down, Japan was still fighting with every ounce of its strength, the USSR had entered the war, and still Japan refused to surrender. Despite losing every single one of its seized possessions, despite having 100,000 civilians (not to mention the city itself) of Tokyo incinerated in firebombings, Japan still refused to surrender. Despite the bombing of Hiroshima, the generals and the emperor refused to surrender. Despite, the bombing of Nagasaki, the generals refused to surrender. Does Mr. Mayerfield really think that three months of negotiations would have succeeded, where 4 years of war and millions of deaths failed?

    And finally, and this does matter alot, let us not forget the Japanse were nearly as barbaric an enemy as was Nazi Germany. The Rape of Shanghai, the Bataan Death March (not to mention the treatment of POWs in general), the chemical and biological experiments…this was an enemy that cared not for the norms of warfare, let alone any abstract notion of international law.

    Finally, let us not forget the dangers of treating warfare as a law enforcement issue. The whole problem now with Able Danger and whether Atta and his cronies were known to US intelligence revolves around the “wall” that Gorelick tried to put up between law enforcement and intelligence. Without getting into a debate on that wall, let us recognize that by trying to protect our civil liberties (by not allowing intelligence agencies to investigate US citizens or legal visitors) the US may have helped make 9/11 possible. War and law enforcement are two different arenas, and they don’t mix well.

  9. Hi Everyone,

    This is something I wrote on the same topic over in the ASILforum in response to someone who said:

    > Might makes right.

    Might doesn’t make anything like RIGHT — it makes the mighty a menace to public safety, and “those who live by the sword shall perish by it”.

    Corrollary: “There was never a horse that couldn’t be rode, and never a cowboy that couldn’t be throwed.”

    The only true might or right resides in REASON.

    As for the decision to drop the bomb… I think it was a bad decision but a very understandable one.

    Truman didn’t even know about the bomb until after he was sworn in as President. I think the two major factors were a) making an impression on Stalin (who already knew about it), but b) mostly, just the pure need to end the war ASAP. We had over 12 milllion men under arms, and even though we had not had to endure the devastation the other great powers did, everyone was TIRED of the war, the rationing, the worry. Look how quickly we demobilized once it did end.

    Militarily, there was absolutely no need to invade the Japanese mainland. The Japanese Army in China was intact but not ready for prime time with the Soviets coming in, and a maritime economy with no navy or merchant marine is doomed. They were in an absolutely hopeless position strategically.

    I also think it would have been better to demonstrate the bomb (which was suggested). Like drop one on top of Mt. Fuji and tell them the next one is going on the emperor’s palace. But we only had two, there wasn’t going to be enough material to make more for awhile, and we’d already resorted to LeMay’s fire raids.


    I guess I should add: look at all the hysteria and pure wilful ignorance today. Doesn’t it tell you something about the mentality of war?

    Just last night I was doing a little (rare) recreational reading, in an interesting book on the history of English/American law by Charles Rembar (who sucessfully defended the books Lady Chatterly’s Lover, Tropic of Cancer, and Fanny Hill on obscentity charges), LAWS OF THE LAND (Simon & Schuster, 1980) and found a quote that resonated VERY strongly indeed:

    “The deterioration of the federal agencies was aided by the flight of intellect from Washington after World War II. In Truman’s elected term [1949-1953], one of the best brains in the administration was the President’s, an antic state of affairs which his successor [Eisenhower] managed to correct without improving his subordinates.” [page 234]

    Talk about ironic… that was published in 1980. And here we are, plumbing the unexplored depths and still no bottom in sight…


    Charles Gittings

    cbgittings [at] yahoo [dot] com

  10. Yesterday, at the end of a post festooned with misfired invectives, H. TUTTLE said something refreshingly coherent. He said “I look forward to rejoining the debate at Opinio Juris when Professor D’Amato returns to his ivory tower.”

    Frankly, I was looking forward to exactly the same thing. But, alas, within less than 24 hours,
    H. Tuttle forgot his promise to go away. Instead he is back with more flapdoodle. Tut-tut, Tuttle.

  11. Ethically, the strategic bombing of cities earlier in the war was less justified than dropping atom bombs on Hiroshima and Nagasaki. The atom bombs may have ended the war; there is no way that the Allies could have thought that the earlier strategic bombing would end the war.

    Legally, the strategic bombing of cities was not explicitly prohibited until the 1st Additional Protocol to the Geneva Conventions in 1977.

    Jamie refers to the ICJ’s 1996 Nuclear Weapons Case. In that case, the ICJ said that avoiding attacks on civilians is the essence of intl humanitarian law. True today, but not in WWII.


  12. Mark…you’re right about the bombing of cities not being illegal until 1977. But your support of the ICJ example just doesn’t hold up. The Geneva Convention is a treaty, signed by the US and ratified by Congress. Under the supremacy clause, that makes it domestic law. The ICJ ruling, however, is not, under any interpretation of international law, binding international law. The ICJ ruling simply does not have standing in many countries. Its decisons are not binding and its rulings, while often used to interpret the meaning of existing law, do not make law.

    Also, you claim that “there is no way that the Allies could have thought that the earlier strategic bombing would end the war.” This is quite wrong. The Allies were hoping that attacks against the “Home Front” would convince the domestic populaces of Germany and Japan to force their governments to stop the war. Naive? Perhaps. But it’s just incorrect and insulting to insinuate that the bombings were carried out only to kill civilians.

  13. Both SETH and MARK say that the strategic bombing of cities was not explicitly prohibited prior to 1977.

    The Hague Convention IV of 1907 states in Art. 25: “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”

    Thus the law prior to WW II was against bombing of cities. However, the customary law may have changed during WW II.

    Both Mark and Seth seem, to me, to be overly wedded to linguistics, such as the talk about explicit prohibitions. With all due respect, I think the law of war is customary international law, developing according to realities on the ground and not words on pieces of paper. Law doesn’t live by words alone. The Nuremberg judgment would be inexplicable if the treaties the Tribunal construed were the alpha and omega of the laws of war. Indeed, the treaties were inapplicable according to their specific language. But they did signify a movement in the international community that I tried to spell out in the opening blog: it is legal to attack the enemy’s capacity for making war, it is illegal to try to break his will (except, of course, as a consequence of destroying his war-making capacity).

    Thanks also to Jamie and Charles for their helpful additions to this thread.

  14. Fiona De Londras said: “However, even if Hiroshima can be legally excused by the military necessity argument, there can, as you rightly say, be almost no excuse or viable explanation for the Nagasaki bombing.”

    That is an interesting point. I am thinking that the use of atomic bombs upon Hiroshima and Nagasaki were America’s first experience with: “make a war and no one shall come”.

    The Cold War and Vietnam expanded that philosophy. The modern democratic nation-state is averse to war and when young people do not show up in the public square to fight in wars then the modern state will shift warfighting capability to means and methods outside traditional conscription of manpower and the impacts that such conscription has upon domestic populations of the state that are contributing the sons and daughters to such efforts.

    So the development of the atomic bomb led to laser-guided bombs and other instruments of warfare that provide the modern state with the tools to fight wars with nothing but an all-volunteer military force.

    Attempts by special interest groups to Vietnamize the War on Terrorism (Cindy Sheehan comes to mind) only pressures government to keep such weapons warmed up and on a trigger-finger readiness which makes the entire world unsafe.

    That means that as the young of the modern state do not rise to defend it because it becomes politically unpalatable, nation-states that engage the modern democratic free state may find themselves on the receiving end of nuclear weapons. That is a dangerous condition and an ethical issue that should be explored in greater detail.


  15. I hardly found Mr. Tuttle’s post “festooned with misfired invectives,” or “flapdoodle” as portrayed by D’Amato’s own touchy retort, but rather more accurately described as indignant outrage at Mr.’s D’Amato continued stream of one-sided rationales.

    Professors Borgen, McGuiness and Ku, despite coming from different perspectives, always brought value to exceedingly interesting discussions, whereas in my view Mr. D’Amato’s primary goal here appears generating controversy without proper context.

  16. There’s been repeated calls for context here, so for some context I offer the Feb. 1945 Japanese massacre in Manila during WWII, resulting in at least 100,000 civilian deaths at the hands of vengeful retreating Japanese soldiers. This strikes me as a true war crime.

    And as what occurred in Manila was well known to U.S. military planners, the response of bombing Hiroshima and Nagasaki several months later are slightly more understandable. Why?

    Professor D’Amato critiques detailed “understanding” under the banner of “to understand all is to forgive all” but that’s not the real issue; understanding *why* a-bomb use was acceptable is more valuable in planning for the future.

    If an Iranian-provided nuke smuggled into NY harbor within a cargo ship detonates one horrible day, does Professor D’Amato accept that fierce and city-flattening retribution (either via conventional or nuclear weapons) would be forthcoming upon Iran (assuming it’d be straightforward to trace the fissile material back to its source)? The American people would demand such retaliation, and all the international law in the world could n’t contain it.

    So, rather than re-dredging the past I’m more interested in how does international law and the international community plan for the inevitable day when a brighter-than-the-sun flash from an unbridled nuclear chain reaction once again shudder the surface of the earth?

  17. To ERIC: It wasn’t soldiers, it was sailors, who committed the war crimes in Manila in 1944 and 1945. Remember that the entire Japanese army was stuck in China. Japan fought us with just its navy, that is, with one hand tied behind its back. By 1944 the sailors in Manila knew they were doomed, and they ran amuk. Their superior officers, also depressed, were in no mood to control them. By a huge effort, the Tojo government in Tokyo despatched Army General Yamashita to Manila to control the situation. Despite his enormous prestige, the fact that he was army and not navy meant that the out-of-control sailors in Manila paid him only lip service and went about committing their atrocities.

    We prosecuted and hung Yamashita when he was perhaps the least culpable Japanese person in the Philippines.

    How can you say that the atomic bombing of Hiroshima and Nagasaki is “more understandable” given the war crimes in Manila? While it might have been understandable for the United States to torture the Japanese sailors captured in Manila in the late spring of 1945, by what stretch were we justified in torturing (because that’s what radiation does for all the folks on the periphery of the bomb) the women, children, and elderly who made up the bulk of the populations of Hiroshima and Nagasaki?

  18. To Eric: Why is it “understandable” that we would take revenge upon the Japanese sailors (not soldiers, by the way) for their war crimes in Manila, by dropping atomic bombs on primarily civilian populations in Hiroshima and Nagasaki?

  19. “My theory, terrible as it sounds, is that (a) we dropped the plutonium bomb on Nagasaki to see if it would work—if it hadn’t exploded, nothing would have been said;…”

    The Trinity test at Alamagordo was a plutonium weapon–the same type dropped on Nagasaki. They tested it because they weren’t sure if the implosion-type trigger would work in practice

    The gun-type uranium bomb dropped on Hiroshima was untested, since the design was simple and the scientists were certain that it would function as intended.

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