Was it a war crime when US nuked Hiroshima & Nagasaki?

Brandon9000 wrote:

Craven de Kere wrote:

Incidentally Brandon, does any of this qualify for you toward American actions?

For example would you accept "already crimes by virtue of being violations of treaties or of international or domestic law"?

I'm not entirely sure what you're asking me. If you are referring to Hiroshima and Nagasaki...

Brandon, I mean that some findings of criminality were based upon recognition of the virtue of morals.

Some of the arguments were tantamount to saying "if there ever were a war crime this is it" and since war crimes are crimes this was a crime.

Would you accept something like that? That the use of Atomic Bombs against civilians was a "war crime in the traditional sense" or somesuch?

Do you assert that there were no ex post facto charges and interpretation of laws? Hell I don't think you can find a decent work on ex post facto laws or retroactivity without this being a central example.

One example would be the killing of their own citizens. Another would be the precedent of charging subordinates. Another would be the charge of "waging an aggressive war" (the counterargument is the Kellogg-Briand Pact supposedly made it illegal).

When the Nazis altered a German law to state the following they were criticized for violating the principles of non-retroactivity:

Quote:

Whoever commits an act which ... deserves punishment according to the principles of criminal law and to the sound feelings of the people, will be punished.

"To sound feelings of the people" is on the same level as war crimes "in the traditional sense".

Quote:

As I see it, the tribunal worked around the jurisdictional issue in two ways: (1) it substituted itself as the arbiter and enforcer of German law;

Under what authority? This was problematic, the trials threw everything at em and their standard mantra was a crime "in the traditional sense" and then usually just vaguely referenced any laws (e.g. "treaties, international law and domestic law" in addition to just plain crimes "in the traditional sense") so they did reference domestic law but to me it seemed more like rhetoric than a legal argument.

That would be a good example of retroactive reinterpretation. Calling a "war of agression" illegal was alreadyt on shaky ground, calling all acts "in furtherance" of the war is shakier still.

And ultimately that leaves out stuff that was done for reasons other than "furtherance of the war".

Quite a lot of different laws in different law categories, which were changed in the one or the other way by the Nazis, are online. (In German only - Joe will have more than an idea about what they say :wink: )

Deutsches Reich

Craven de Kere wrote:

Do you assert that there were no ex post facto charges and interpretation of laws? Hell I don't think you can find a decent work on ex post facto laws or retroactivity without this being a central example.

If you'd read my previous posts, you'd see that I do not make that contention.

Craven de Kere wrote:

One example would be the killing of their own citizens. Another would be the precedent of charging subordinates. Another would be the charge of "waging an aggressive war" (the counterargument is the Kellogg-Briand Pact supposedly made it illegal).

I covered the point about Germans killing Germans in my previous post. The charge of "crimes against peace," I would contend, was well-founded on both traditional notions of international law and upon international conventions in existence at the time of the alleged crimes.

Quote:

"To sound feelings of the people" is on the same level as war crimes "in the traditional sense".

I strongly disagree.

I can see two ways in which the Nurnberg tribunal could set itself up as the arbiter and enforcer of German domestic law: (1) since the occupying powers established themselves as the legal authority in Germany, it was entitled to enforce domestic law;

and (2) if the Nazi seizure of power in 1933 was determined to be unlawful, then not only could the Allied Powers enforce German law, they could also enforce German law as it existed prior to the Nazi takeover.

Now, frankly, I'm not sure about point (2) above. It seems to be a bit of bootstrapping, but at least it is plausible.

Craven de Kere wrote:

That would be a good example of retroactive reinterpretation. Calling a "war of agression" illegal was alreadyt on shaky ground, calling all acts "in furtherance" of the war is shakier still.

Not under traditional legal analysis. For instance, if you drive the getaway car for your bank-robbing accomplices, you can be charged with bank robbery, since your act of driving the car was done in furtherance of the crime. Nothing unusual about that.

Craven de Kere wrote:

And ultimately that leaves out stuff that was done for reasons other than "furtherance of the war".

Many of the crimes could be tied directly to the war, but we should expect that there would have been many ways in which such connections could be made. It was, after all, a pretty big war, but it was also a pretty big crime.

Atomic Bomb Saved Lives in WWII

By Larry Bernard
04/14/94

Dropping the atomic bomb on Japan was necessary to end World War II and actually saved lives from a U.S. invasion, Hans A. Bethe, Cornell physicist, told a university audience last week. "There was terrible destruction," Bethe said, describing the effects of the nuclear explosions. "The cities were almost razed to the ground. There were over 200,000 casualties, dead and injured." Most of those casualties came from fire. "We needed the awful destruction of Hiroshima and Nagasaki to make the emperor [surrender]," Bethe said.

Bethe described the scientific and political events leading to the bombing of Hiroshima and Nagasaki in a lecture on April 6 in Schwartz Auditorium, Goldwin Smith Hall. His lecture was part of Cornell's International Week, with his talk sponsored by the Japan-U.S. Association.

Carl Sagan, the David C. Duncan professor of astronomy and space sciences, introduced Bethe and moderated the discussion after his talk. Bethe, the John Wendell Anderson professor of physics emeritus, headed the theoretical physics division at Los Alamos, N.M., where the Manhattan Project to build an atomic bomb was headquartered.

Bethe said the destruction of the two Japanese cities caused Emperor Hirohito to invoke his inner cabinet, made up of three military commanders and three civilians. They were split on whether to continue the war, Bethe said, and Hirohito decided to surrender. "What would have happened without those weapons? There were plans to invade Japan. The estimates were that it would take 1 million American lives. It was certain it would have taken far more Japanese casualties," the Nobel laureate said. "So . . . the atom bomb saved lives, mostly Japanese lives. And the Soviets were eager to participate in an invasion. That occupation would have been far more oppressive on Japan."

Bethe, who came to Cornell in 1937 after leaving his native Germany, said the Manhattan Project meant that "there was never any chance that the bomb would not be used," even though originally it was meant for Germany. After Germany surrendered in May 1945, it was decided to use it against Japan. However, "I hope no nuclear weapon will ever be used again in anger," Bethe said. "A future war between nuclear powers would be entirely different from 1945," he said. "It would not involve two bombs, but hundreds. It would not kill a few hundred thousand, but it would kill millions. It would most likely destroy civilization." He added, "Statesmen have learned that [using nuclear weapons] is simply something that must not be done. We've survived 50 years, I think we'll survive some more."

In response to a question about arms cuts, he said, "I would like to see the number of nuclear weapons drastically reduced. I'm hoping we can go down to something like 100. Then, a nuclear holocaust is no longer possible. "Why not eliminate them all? Because there are countries, like Iraq and North Korea, that treat the problem lightly. There have to be nuclear weapons in the hands of more responsible countries to deter such use." .


The Cornell Chronicle (ISSN 0747-4628)
© 1994, Cornell University

joefromchicago wrote:

If you'd read my previous posts, you'd see that I do not make that contention.

I do not this. But because my initial point had been that ex post facto was deemed enough to assert criminality in some cases.

I made the mistake of claiming all sinetad of some and both yourself and Brandon corrected this, the point's validity was the comparison of what was, in fact, ex post facto.

What is a "crime against the peace" Joe? Would using nuclear weapons against civilians count?

This is the type of comparison I am getting at. The vague and ambiguous charges of crimes against humanity and crimes against the peace are tantamount to a crime according to "the sound feelings of the people".

The appeal to the ambiguous "traditional sense" when there was precious little tradition and precendent to be invoking is as vague as saying it is against "sound feelings". But a better example would be to match "crimes against humanity" up with crimes against "the sound will of the people".

Indeed, Victors Justice plain and simple. Likewise I hearken unto the comparison, were the victors reversed the bombing of Hiroshima and Nagasaki would be the type of thing to get easy conviction under Victors Justice.

Joe, there was nothing "traditional" at the time in regard to criminal "war of agression".

The knee bone's connected to the... head bone...

Ok, then if we allow for such creative interpretations:

The US blockades and aid to the enemy constituted an act of war against Japan, a "war of agression" ( a god-dammed oxymoron if there ever were one) and thusly all furtherance of the war is illegal.

The nuking was therefore illegal in addition to being a crime against humanity, decency and moral fiber, also a war crime in the traditional sense and such.

With such standards, it's pretty easy to assert just about anything was a crime.

About Hans Bethe

Atomic Bomb Saved Lives in WWII

Craven de Kere wrote:

joefromchicago wrote:

If you'd read my previous posts, you'd see that I do not make that contention.

I do not this. But because my initial point had been that ex post facto was deemed enough to assert criminality in some cases.

I can't make sense of these two sentence fragments.

Craven de Kere wrote:

I made the mistake of claiming all sinetad of some and both yourself and Brandon corrected this, the point's validity was the comparison of what was, in fact, ex post facto.

I am fluent in English, and am reasonably proficient at French and German. I can even, in a pinch, make it through Italian. But I'm having some trouble, I'm afraid, with Cravenese.

Craven de Kere wrote:

What is a "crime against the peace" Joe? Would using nuclear weapons against civilians count?

Read Count II of the Nurnberg indictment.

All the defendants with divers other persons, during a period of years preceding 8 May 1945, participated in the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances.

Appendix C lists the treaties that Germany violated.

As for using nuclear weapons against civilians, I have an opinion on that subject. I will not, however, mention it here in the midst of a discussion regarding the Nurnberg war crimes trials, as it would be both confusing and distracting. On the other hand, I know how much nuclear weapons fascinate you, Craven, so I promise I'll return to that subject once we have adequately dealt with this one.

Craven de Kere wrote:

This is the type of comparison I am getting at. The vague and ambiguous charges of crimes against humanity and crimes against the peace are tantamount to a crime according to "the sound feelings of the people".

Two quick points in response:

(1) I'm not sure why you'd say that the violation of an international treaty is analogous to a violation of the "sound feelings of the people." Perhaps you'd take the opportunity to explain?

(2) International law has historically been traditional law. Although the field of international law (or the law of nations) is as old as the ancient Greek laws regulating heralds and embassies, it was only in 1856 that the first major international agreement that purported to establish international law was concluded. Thus "statutory" international law, as codified in international conventions, was less than a century old at the time of the Nurnberg trials. The assertion, then, that a "crime against the peace" is a crime against traditional principles of the law of nations is a statement that is neither vague nor ambiguous, but is rather meaningful under commonly understood tenets of international law.

Craven de Kere wrote:

The appeal to the ambiguous "traditional sense" when there was precious little tradition and precendent to be invoking is as vague as saying it is against "sound feelings". But a better example would be to match "crimes against humanity" up with crimes against "the sound will of the people".

I don't want to sound dismissive, but we are rapidly approaching the point at which I will either have to give you a semester's worth of legal instruction or I will have to give you a reading list and send you to the library. International law is an amalgam of traditional (i.e. unwritten) law and international agreements. To dismiss the traditional law of nations because it is "vague," therefore, is to misapprehend the nature of that law. Certainly the jurists as Nurnberg considered traditional international law to be "real" law, just as the Germans, prior to 1933 if not to 1945, likewise considered it to be "real" (after all, even Hitler's regime paid some deference to the Geneva Convention on POWs).

Craven de Kere wrote:

Indeed, Victors Justice plain and simple. Likewise I hearken unto the comparison, were the victors reversed the bombing of Hiroshima and Nagasaki would be the type of thing to get easy conviction under Victors Justice.

If you spoke to an adherent of critical legal studies, you'd be told that all legal codes are examples "victors' justice." A domestic legal code is just as much the product of society's winners imposing their will on society's losers as a war crimes trial is the product of a war's winners imposing their will on the war's losers. To say, then, that something is "victors' justice" is to utter a jejeune truism.

Frankly, I think there is a certain amount of truth in that with regard to domestic legal codes, and a good deal more truth in it with regard to international law. But identifying an element of interest, either in the domestic or the international legal sphere, does not close the debate over the nature of justice itself. If you are suggesting, then, that "victors' justice" is not "justice," I can't say that's necessarily true.

Craven de Kere wrote:

Joe, there was nothing "traditional" at the time in regard to criminal "war of agression".

You are wrong. Read Count II and Appendix C of the indictment again.

Craven de Kere wrote:

The knee bone's connected to the... head bone...

Ok, then if we allow for such creative interpretations:

The US blockades and aid to the enemy constituted an act of war against Japan, a "war of agression" ( a god-dammed oxymoron if there ever were one) and thusly all furtherance of the war is illegal.

The nuking was therefore illegal in addition to being a crime against humanity, decency and moral fiber, also a war crime in the traditional sense and such.

With such standards, it's pretty easy to assert just about anything was a crime.

Let's just stick with the Nazi war crimes tribunal for the nonce.

I believe you folks miss the point ... the military lives saved were but a small fraction of the civilian holocaust that would have ensued from an invasion.

If confronted only with a choice between two evils, the lesser evil is the only moral and ethical choice.

Is it then in contention that law trumps morality and ethics?

I'd have thought that notion specifically put to rest by the findings and vedicts of the post-WWII war crimes trials.

Either way, I can read and understand that, and suspect you can as well.

Prior to that impromptu definition, where was the "crime against peace" delienated.

Sure, "crime against the peace" does not exist Joe and did not exist. It was defined for the purposes of the trials to be whatever violations they wished to call "crime against the peace". Included in these violations are the details above.

This is a definition of "crimes against the peace" that they created for the purpose of charging them with it and nothing more.

"Crimes against the peace" was a crime as determined "by the sound feelings of the people" who won the war.

Well Joe, then I'm sure you will be able to find a legal code (prior to the trials) where "crimes against the peace" is delienated and which Germany was bound to.

If this is not a vague term coined at the whim of the court you should have no problem finding an legal code germany was party to that explains what a "crime against the peace" is.

Feel free to illustrate the "traditional" legal (as opposed to whimsical term created for a kangaroo court) definition of this seemingly all-inclusive crime.

And quite frankly I do not dismiss the kangaroo court that was the Nuremberg trials. They are a pivotal point in legal history.

I made a comparison in response to Brandon's query about what legal document existed to proscribe the use of atomic weapons.... So perhaps you might use the "read this tome" tactic (or better yet a concise explanation as Brandon is an understandable sort) with Brandon as he was calling for an un-vague, unambiguous delienation of the illegality of the use of atomic weaponry.

There is a lot of truth to this statement. But to say that "Victor's Justice" is jejune is misleading.

Do you mean to assert that "Victors Justice" holds no meaning toward describing that some justice is predetermined by the victor of a separate proceeding?

Maybe the best way to illustrate what I speak of when I refer to "Vitor's Justice" is the following exercise:

If the Axis had somehow won after the use of the atomic weapons would you consider it likely that the use of the atomic weapons would be considered criminal by any trial the axis might have mustered?

Perhaps even a "crime against humanity" in the traditional sense?

I have. And I repeat. There was nothing traditional at the time in regard to criminal "war of agression".

Joe, this topic is about the atomic bombings, I don't mind the Nazi trials comparison, verily I brought it about. But let's not decide to "stick to" it to the exclusion of the discussion about the atomic bombings.

Weren't some defendants found innocent and some fount not guilty on the basis of a lack of evidence?