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

Many defendants were acquitted, varying degrees of culpability were assessed against others, with commensurate differentiation in sentencing. Kangaroo Courts are not noted for nuanced deliberative process and application ... pretty much "One size rope necktie fits all", to my understanding. Clearly, that isn't what happened. Had The Axis been accorded opportunity to effect post-war prosecutions against the Allies, I rather suspect the excersize would have been quite differently undergone. Consider the trials held in wartime Nazi Germany relating to the abortive July 20 1944 Bomb Plot.

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joefromchicago wrote:

Craven de Kere wrote:
Either way, I can read and understand that, and suspect you can as well.

Your suspicion is unwarranted.

I disagree, my suspicion was rooted in my belief in your cognitive abilities, perhaps the belief was unwarranted but not the suspicion.

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Craven de Kere wrote:
Prior to that impromptu definition, where was the "crime against peace" delienated.

If you're asking whether there was something called "a crime against peace" prior to 1945, my guess is that there wasn't.

My guess too. I allege it is a ficticious crime coined at that instant.

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I suppose that the prosecutors could have separately charged the defendants with breaching each of the 26 conventions or treaties listed in Appendix C of the indictment rather than charging them with a single "crime against peace," but I'm not sure what the practical difference would have been.

It has relevance to the discussion because "crime against the peace" and "crime against humanity" are, by my estimation, ambiguities of a nature that could just as easily be applied to the atomic bombings.

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Craven de Kere wrote:
"Crimes against the peace" was a crime as determined "by the sound feelings of the people" who won the war.

Well, in one sense that's true.

Yes, in the only sense in which it is meant it is true.

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Craven de Kere wrote:
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.

You set up a strawman, you knock down a strawman.

There was no legal code that defined "crime against peace" prior to 1945. That was my point in bringing up traditional notions of international law.

I'm not quite sure this is a straw man Joe. If it's this well understood legal tradition then it can certainly be documented. Is it? You say no.

If it's some well-understoood unwritten and undocumented tradition I raise the possibility of people claiming as much based merely "on the sound feelings of the people" and question it's legal weight.

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

If we are merely focused on the term, then, as I stated above, there was probably no such thing as a "crime against peace" prior to 1945, even under the non-codified "traditional" law of nations.

Then we can ignore the exchange immediately prior to this.

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If, on the other hand, we are focused on the content of the crime, then I think there was a sufficient basis in traditional international law for holding that a nation that launched a "war of aggression" (as defined in the indictment) was guilty of a breach of international law.

Joe, an interesting aside:

Was the war in Iraq an illegal "war of agression"? Just an unrelated curiosity, I've gotten the impression from you that you think it is, but that it's ambuguous.

Coincidentally it can be related to this in that said ambigioty might have something in common.

But I digress Joe.

Who, at Nuremberg was charged with initiating a war? Charging the subordinates was a break from precedent that I allege constitutes ex post facto. If they are charged with starting a war, I allege that the charge is false and that the individuals, in large part, had no say in it.

So if the legitimate legal charge is starting a war, I don't think it could have properly been applied. Many of the individuals involved had no part in starting the war and were subordinates to it once it was under way.

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

It's hard to take you seriously when you say that you're not dismissive of the Nurnberg tribunal, yet, in the same sentence, you describe it as a "kangaroo court."

Why? Is there some unrwritten rule that all Kangaroo Courts are to be dismissed?

It was a special situation Joe, I'd have created Kangaroo courts too. And I am happy those were created, frankly I think it is the best thing to ever happen to international law with the exception of the inception of the UN, ICC and WTO.

So why can't I both calll it a kangaroo court and not dismiss it.

I suspect it might be as simple as you not thinking it was a kangaroo court, which is fine with me. People can differ on the applicability of a term,a dn this term is superfluous to this exchange.

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I came to this thread quite late. It is not only a very long thread, but it is surprisingly venerable. I have not, therefore, read all of the posts prior to my appearance. If you've covered this ground with Brandon, then I was unaware of it until now. And if Brandon could profit from reading some books on international law, I hope he will avail himself of the opportunity to do so.

Reading is almost always a good thing Joe. But I find it ironic that you on one hand justofy not reading what would take less than 8 minutes and then suggest that someone read what may well take years.

In any case, I do wish to ultimately get back to whether or not the atomic bombings are illegal.

What is your opinion on this?

My position is, that it was about as illegal as some of the generalized "crimes" ("crime against the peace" and "crime against humanity" and "war crime, in the traditional sense") that resulted in convictions and executions.

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

I did not mean to imply that that was my opinion. I was simply characterizing the attitude of an adherent of Critical Legal Studies.

Forgive me, in that case, whomever it is you are representing with that statement was misleading.

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Craven de Kere wrote:
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?

"Holds no meaning?" I don't understand the question. If you're asking if, in the views of some, the term "victors' justice" means "predetermined justice," then I suppose the answer would be "yes." That's not my view, but I suppose some people might see it that way.

Hmm, this may well be a fruitless logomachy. But the lexicographer in me has less qualm with logomachy than most.

Do you thing that the term "Victor's Justice" has a meaning that delienates between different situations?

If it describes all, then it describes nothing. In that there's nearly always a "victor" it describes all.

Do you assert that there is no meaning in which it describes less than all?

Ahh forget it, I think I know your answer and our differances are far too nuanced for this to be enjoyable.

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Craven de Kere wrote:
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 think it is very likely that a victorious Nazi regime would not have held any trials at all.

I had predicted this response and pre-empted it by the very clear addition of: "by any trial the axis might have mustered".

The question assumed an existence of a trial and pre-empted avoidance based on speculation about whether or not there would have been one.

So now that you've answered the unasked question about whether there would be a trial please tackle the asked question.

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

Again, are you concentrating on the term "war of aggression," or are you contending that international law did not condemn those acts which the Nurnberg indictment characterized as constituting a "war of aggression?"

Both. See, I think many of the charges were ambigious, while referencing some specific perceived violations. Soem acts were clearly proscribed.

I think the general charge and their application considered on the whole was in no way traditional. Even if they sometimes liked to say the word "traditional".

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Craven de Kere wrote:
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.

This is an instructive diversion from the main theme. It cannot be instructive, however, if other topics (including the main theme itself) are allowed to intrude. Once we have sufficiently mined this particular sub-thread for all it is worth, then we can profitably return to the primary topic of the thread.

Well, then we would do well to take context into account. Let me summarize:

1) The topic is about whether or not the atomic bombings were legal.

2) Brandon asked what I think is a fair question, about whether there were laws, treaties or whatnot that the US was party to that renders it illegal.

I assume he spoke of clear, written and documented laws and not the "unwritten" "traditional" ones you spoke of in the diversion.

3) I do not believe there were clear laws on it. I am certain that there were none that stated "America shall not use atomic weaponry against Japan."

Well, the nature of law is that such precision is rare and more inclusive and perhaps ambiguous laws must exist.

4) In exploring this ambiguity I am reminded of the Nuremberg trials.

5) To indulge in a little distraction I make a moral point by stating that the Nazi's actions were not illegal (if clearly immoral).

6) That indulgence also had topical quality, as I wished to highlight what I see as convictions for "crimes" that involved a healthy amount of ex post facto declaration.

7) I made the unfortunate (if perfectly forgivable and understandable) mistake of declaring "all" in regard to ex post facto.

8) Brandon corrected me on this.

9) I accepted his correction as I had experienced mental flatulence, a brain fart. By referencing one accord I was easily reminded of elements of the charges that render false my "all" claim.

10) I correct my "all" claim to "some" (not my exact wording, I used "much" or some such).

11) You begin to tackle my "all" claim.

12) We get bogged down in a very interesting diversion.

Now, if we agree that there were "some" ex post facto, my initial comparison stands.

If, however, either of us holds the position of "all" or "none" this diversion is necessary to settle the validity of my comparison and the point I was making about the legality of the atomic bombings.

The point was bi-fold.

One was a distraction to make the moral point.

The other was to show that the law was more nuanced than what Brandon had asked for.

Ultimately, it was to discover just how inclusive and nuanced one would have to go to find the bombing illegal.

Anywho, while the discussions are interesting (and I'll certainly pursue them for as long as they maintain my interest) context needs to be taken into account.

Elements of my positions on the Nuremberg trials are influenced by the position Brandon took. If you think I seem dismissive it is likely because you do not recognize the context.

Brandon had wanted something very clear cut. I have been holding Nuremberg up to the same light for comparison (actually, I'm kinder to Nuremberg than Brandon was to a law on the nukings).

Anywho, for future reference, as long as we agree on "some" the comparison's point remains valid and continuance on the subject can return whenever the diversion has been exhausted.

Just to keep us mindful of what we'll come back to:

What is your opinion on the legality of the atomic bombings?

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Craven: I don't want you to think I'm ignoring you, but I will be offline for much of the day today. I'll respond to your latest posting when I have the opportunity.

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Just to intrude, I would submit no law extant contemporaneously proscribed the application of nuclear weapons in the manner recorded. I further submit that had the weapons not been used and the invasion been undertaken as planned, the revelation a potential means of ending the war much sooner and and at far less material and human cost had been available yet unused would itself have been grounds for warcrime prosecution.

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timberlandko wrote:

....I further submit that had the weapons not been used and the invasion been undertaken as planned, the revelation a potential means of ending the war much sooner and and at far less material and human cost had been available yet unused would itself have been grounds for warcrime prosecution.

Who would have conducted the trial, and what law or treaty would the accused have violated?

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If nothing else, and if not per se a warcrimes trial, I would conjecture Truman and the relevant personages and departments within his administration would have been brought severely to task by the legislative and judicial branches of the US Government, with or without participation and/or further prosecution on the part and/or behalf of The UN. The resultant contretemps would have compared to all recorded US impeachments as a murder prosecution to a local zoning dispute.

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timberlandko wrote:

If nothing else, and if not per se a warcrimes trial, I would conjecture Truman and the relevant personages and departments within his administration would have been brought severely to task by the legislative and judicial branches of the US Government, with or without participation and/or further prosecution on the part and/or behalf of The UN. The resultant contretemps would have compared to all recorded US impeachments as a murder prosecution to a local zoning dispute.

Okay, but it sounds like they would have been brought to task for "bad judgement." That's possible, though you can't be impeached for it.

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Timber, failure to use the atomic bombs would not, even under Nurembergesque stretches, be considered a "war crime", not even "in the traditional sense".

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Well I've always had my doubts about the necessity of bombing Hiroshima and Nagasaki. It was clear from the time Leo Szilard realised a chain reaction in uranium was a possibility, that warfare between great powers would be determined by possession (or not) of the nuclear weapon.

The bombings themselves provided the opportunity to study the effect of the uranium and plutonium bombs on real cities (an experiment that could hardly be done during peace time). They also acted as a demonstration to warn off the Soviet Union.

And they ensured Japan's quick surrender. But it is interesting that Japan was already putting out peace feelers through the Swiss Embassy, the sticking point being the status of the Emperor. The Americans insisted on unconditional surrender, but in practice allowed Hirohito to remain as a constitutional monarch (something the Japanese might have settled for).

There was also the question of targets. Its no use dropping the world's first nuclear weapon on a city already extensively damaged by conventional bombing. (By 1945 there was becoming a shortage of such cities in Japan).

I'm not saying the nuclear bombings were a war crime. But I do contend that they were an experiment to determine the nature of nuclear warfare, and that their importance as a factor in bringing the Pacific war to an end has been exaggerated to disguise that ugly fact.

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Craven de Kere wrote:

It has relevance to the discussion because "crime against the peace" and "crime against humanity" are, by my estimation, ambiguities of a nature that could just as easily be applied to the atomic bombings.

That wasn't my point when I raised the question about "relevance." I questioned whether it was relevant to make a substantive distinction between charging each of the Nurnberg defendants with 26 separate crimes or with one crime based on 26 separate acts.

Craven de Kere wrote:

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

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Well, in one sense that's true.

Yes, in the only sense in which it is meant it is true.

No, only in the most trivial sense.

Craven de Kere wrote:

Quote:
You set up a strawman, you knock down a strawman.

There was no legal code that defined "crime against peace" prior to 1945. That was my point in bringing up traditional notions of international law.

I'm not quite sure this is a straw man Joe. If it's this well understood legal tradition then it can certainly be documented. Is it? You say no.

I'll make this very simple so there's no chance of misunderstanding. If what you're asking for is documentary proof that a "crime against peace," specifically denominated as such, existed prior to 1945, then I would say that it most likely did not. If, on the other hand, you're asking for documentary proof that the acts which the Nurnberg defendants were charged with, and which constituted the basis for the charge of "crimes against peace," constituted breaches of international law prior to 1945, then I would say that there is abundant evidence to that effect. Any pre-1945 commentator on international law would say as much.

Look at it this way: many states have dropped the term "rape" from their criminal codes, replacing it with "criminal sexual assault" (CSA). No substantive change in the definition of the crime takes place, just a change in the name of the crime. Let's say that Criminal commits a rape on December 31, and on January 1 a new law takes effect that redesignates the crime of rape as the new crime of CSA. Criminal is then caught and charged under the new law with CSA. Now, can Criminal plead, in his defense, that the crime of CSA was "unknown" at the time he committed the underlying criminal acts? Hardly.

In the same fashion, the Nurnberg prosecution could charge the defendants with "crimes against peace," even if no crime by that name had previously been known. That's because the underlying criminal acts, the acts that formed the basis for the indictment, were known to be illegal at the time they were committed.

Craven de Kere wrote:

Joe, an interesting aside:

Was the war in Iraq an illegal "war of agression"? Just an unrelated curiosity, I've gotten the impression from you that you think it is, but that it's ambuguous.

Coincidentally it can be related to this in that said ambigioty might have something in common.

But I digress Joe.

Yes, it is a digression. And keeping with my previously stated intention to stick to a narrowly focused inquiry, I won't pursue it. On the other hand, I'd be more than happy to discuss it in another thread.

Craven de Kere wrote:

Who, at Nuremberg was charged with initiating a war? Charging the subordinates was a break from precedent that I allege constitutes ex post facto. If they are charged with starting a war, I allege that the charge is false and that the individuals, in large part, had no say in it.

It wasn't just starting a war, it was also waging a war of aggression.

And if you're suggesting that subordinates could plead, in their defense, that they were "merely following orders," such a defense would have been unavailing even before 1945.

Craven de Kere wrote:

Quote:
It's hard to take you seriously when you say that you're not dismissive of the Nurnberg tribunal, yet, in the same sentence, you describe it as a "kangaroo court."

Why? Is there some unrwritten rule that all Kangaroo Courts are to be dismissed?

Yes. It's the rule of denotation and connotation. Look it up in your Funk & Wagnalls.

Craven de Kere wrote:

Reading is almost always a good thing Joe. But I find it ironic that you on one hand justofy not reading what would take less than 8 minutes and then suggest that someone read what may well take years.

I do not justify my failure to read the entire thread, I merely offer it as an explanation of why I may have skipped something that had already been addressed.

Craven de Kere wrote:

In any case, I do wish to ultimately get back to whether or not the atomic bombings are illegal.

What is your opinion on this?

I will address this question in a separate post.

Craven de Kere wrote:

Do you thing that the term "Victor's Justice" has a meaning that delienates between different situations?

If it describes all, then it describes nothing. In that there's nearly always a "victor" it describes all.

Do you assert that there is no meaning in which it describes less than all?

Ahh forget it, I think I know your answer and our differances are far too nuanced for this to be enjoyable.

Well, if you know my answer, then you're doing better than me. I can't even understand your question.

Craven de Kere wrote:

Quote:
I think it is very likely that a victorious Nazi regime would not have held any trials at all.

I had predicted this response and pre-empted it by the very clear addition of: "by any trial the axis might have mustered".

The question assumed an existence of a trial and pre-empted avoidance based on speculation about whether or not there would have been one.

So now that you've answered the unasked question about whether there would be a trial please tackle the asked question.

Well, I'm not so sanguine about the preemptive effect of your question, but I suppose if Germany was clever enough to claim that Poland started the war, it could have equally ingeniously charged every Allied leader and commander with war crimes.

Craven de Kere wrote:

I think the general charge and their application considered on the whole was in no way traditional. Even if they sometimes liked to say the word "traditional".

I agree that the trials, in themselves, were a "non-traditional" application of international law (although the notion of international tribunals had been gaining currency since the creation of the World Court). Likewise, the nomenclature used by the prosecution was novel. The charges themselves, however, were far more "traditional" than, I think, you suppose.

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joefromchicago wrote:

Craven de Kere wrote:
It has relevance to the discussion because "crime against the peace" and "crime against humanity" are, by my estimation, ambiguities of a nature that could just as easily be applied to the atomic bombings.

That wasn't my point when I raised the question about "relevance." I questioned whether it was relevant to make a substantive distinction between charging each of the Nurnberg defendants with 26 separate crimes or with one crime based on 26 separate acts.

Of course it is relevant, conflating crimes in order to invent a new more ominous sounding one is significant to the discussion of the application of these laws.

Quote:

Craven de Kere wrote:
Quote:
"Crimes against the peace" was a crime as determined "by the sound feelings of the people" who won the war.

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Well, in one sense that's true.

Yes, in the only sense in which it is meant it is true.

No, only in the most trivial sense.

1) Quip
2) Quip
3) Quip

If neither of us intends to get to a point I'm skipping this. We can do witless quips later.

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I'll make this very simple so there's no chance of misunderstanding. If what you're asking for is documentary proof that a "crime against peace," specifically denominated as such, existed prior to 1945, then I would say that it most likely did not.

That is precisely what I have been asking. Thanks for acknowledging this.

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Look at it this way: many states have dropped the term "rape" from their criminal codes, replacing it with "criminal sexual assault" (CSA). No substantive change in the definition of the crime takes place, just a change in the name of the crime. Let's say that Criminal commits a rape on December 31, and on January 1 a new law takes effect that redesignates the crime of rape as the new crime of CSA. Criminal is then caught and charged under the new law with CSA. Now, can Criminal plead, in his defense, that the crime of CSA was "unknown" at the time he committed the underlying criminal acts? Hardly.

Agreed, this is because of a change by a recognized legal authority in terminology. Below, you will atttempt to compare this and I charge that the comparison is flawed because there was no legal authority to make up crimes.

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In the same fashion, the Nurnberg prosecution could charge the defendants with "crimes against peace," even if no crime by that name had previously been known. That's because the underlying criminal acts, the acts that formed the basis for the indictment, were known to be illegal at the time they were committed.

No Joe, this is not equitable.

If I so desire, I can't create a tribunal conflate laws, invent some new ones and try and execute people.

To compare an established legal system's variance in wordings of laws to Nuremberg's self-granted authority, non-traditional interpretation of laws and non-traditional application is misleading.

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And if you're suggesting that subordinates could plead, in their defense, that they were "merely following orders," such a defense would have been unavailing even before 1945.

What precedent do you have in mind?

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Craven de Kere wrote:

Why? Is there some unrwritten rule that all Kangaroo Courts are to be dismissed?

Yes. It's the rule of denotation and connotation. Look it up in your Funk & Wagnalls.

False, denotation and connotation are contingient on the definition itself. They do nothing whatsoever to help you establish a rule that a word needs to be interpreted a certain way.

But this is a digression I will not pursue further.

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Craven de Kere wrote:
In any case, I do wish to ultimately get back to whether or not the atomic bombings are illegal.

What is your opinion on this?

I will address this question in a separate post.

Please do. This is not only an important part of the discussion it is also the sum of the discussion.

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Craven de Kere wrote:
I think the general charge and their application considered on the whole was in no way traditional. Even if they sometimes liked to say the word "traditional".

I agree that the trials, in themselves, were a "non-traditional" application of international law (although the notion of international tribunals had been gaining currency since the creation of the World Court). Likewise, the nomenclature used by the prosecution was novel. The charges themselves, however, were far more "traditional" than, I think, you suppose.

Joe, I've no problem with some of the more traditional pedestrian charges. However, conflating them into new more ominous sounding charges in order to deliver non-traditional sentences is relevant.

The court's very existence was non-traditional in a legal sense.

The court's authority was self-granted through the law of "might makes right".

The court's interpretation of laws was, to put it mildly "creative".

The court's sentencing was, well whatever they felt like.

Toward those ends, much of the charges were fabricated.

Let me make an analogy:

I allege that the fabricated charges of "crime against the peace" and "crime against humanity", while employing some recognized infractions, are tantamount to invoking a 3-strikes law and subsequent sentencing without the 3-strikes having been established as law.

Similarly, if I were to take established crimes of, say, jaywalking, speeding and tax evasion and decide to execute someone under the newly conflated "crime againt the better senses of the judge, jury and executioner" I would be doing something wholly untraditional in scope.

This is what the Nuremberg court did. The scope of Nazi atrocity that there was no legal case against morally justified their legal deviances. And deviances there were and you recognize them while apparently not sharing the same opinion as to their import.

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Craven de Kere wrote:

Of course it is relevant, conflating crimes in order to invent a new more ominous sounding one is significant to the discussion of the application of these laws.

Ominous? Really?

Craven de Kere wrote:

That is precisely what I have been asking. Thanks for acknowledging this.

Don't mention it.

Craven de Kere wrote:

Agreed, this is because of a change by a recognized legal authority in terminology. Below, you will atttempt to compare this and I charge that the comparison is flawed because there was no legal authority to make up crimes.

You're getting into apples-and-oranges territory here. If you're looking for a "recognized legal authority" in international law, you won't find one. Or, rather, you'll find many. Since every nation is sovereign, every nation is entitled both to interpret and adminster the law of nations, just as in a Hobbesian state of nature each individual is entitled to act as judge, jury, and executioner on his own behalf.

Craven de Kere wrote:

No Joe, this is not equitable.

You talk of "equity?" Then you're talking about some extra-legal standard.

Craven de Kere wrote:

If I so desire, I can't create a tribunal conflate laws, invent some new ones and try and execute people.

That's because you're not a nation -- at least, not until you get your own thermonuclear device.

Craven de Kere wrote:

To compare an established legal system's variance in wordings of laws to Nuremberg's self-granted authority, non-traditional interpretation of laws and non-traditional application is misleading.

How so?

Craven de Kere wrote:

What precedent do you have in mind?

Primarily the Llandovery Castle case.

Craven de Kere wrote:

False, denotation and connotation are contingient on the definition itself. They do nothing whatsoever to help you establish a rule that a word needs to be interpreted a certain way.

The connotation is contingent on the denotation, and the denotation is contingent on your whim. This is mere Humpty-Dumptyism.

Craven de Kere wrote:

Joe, I've no problem with some of the more traditional pedestrian charges. However, conflating them into new more ominous sounding charges in order to deliver non-traditional sentences is relevant.

I'm not convinced, but at least I think I have a fair idea of your position.

Craven de Kere wrote:

Let me make an analogy:

I allege that the fabricated charges of "crime against the peace" and "crime against humanity", while employing some recognized infractions, are tantamount to invoking a 3-strikes law and subsequent sentencing without the 3-strikes having been established as law.

Similarly, if I were to take established crimes of, say, jaywalking, speeding and tax evasion and decide to execute someone under the newly conflated "crime againt the better senses of the judge, jury and executioner" I would be doing something wholly untraditional in scope.

One question: would the Allies have been justified in simply lining up all the Nurnberg defendants and shooting them sans trial?

Craven de Kere wrote:

This is what the Nuremberg court did. The scope of Nazi atrocity that there was no legal case against morally justified their legal deviances. And deviances there were and you recognize them while apparently not sharing the same opinion as to their import.

If I understand you correctly, I think that pretty well sums it up.

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As I have promised Craven a post devoted solely to the primary topic of this thread, here are some thoughts on the legal culpability of the US for dropping atomic bombs on Hiroshima and Nagasaki in 1945. Before proceeding, however, I want to apologize in advance if any of these points have been raised before: as I've mentioned previously, I haven't read the entire thread, so I may be covering some well-trodden ground here.

It seems to me that there are four possible reasons for asserting that the use of nuclear weapons constituted a war crime: (1) targeting civilians is a war crime; (2) targeting non-military targets, or targets of slight military importance, is a war crime; (3) employing particularly barbaric or cruel weapons is a war crime; (4) inflicting more damage or death than is "necessary" is a war crime. I'll address each of these in order.

(1) targeting civilians is a war crime
This would be a wonderful idea, but, at least in 1945, it certainly was not accepted as a tenet of international law. Targeting civilians has always been an acceptable, if regrettable, aspect of war. Sieges and blockades target civilians just as much as they do military personnel, yet sieges and blockades had a venerable and accepted place in warfare. To be sure, legal commentators (especially since the 16th century) have admonished combattants to spare civilians if at all possible, but all have acknowledged that, in some circumstances, it is perfectly acceptable to target civilians.

With the indiscriminate aerial bombing of civilians in World War I, and the fears engendered by the works of Douhet and other airwar theorists in the interwar period, there was a move to outlaw aerial bombing of civilian targets in the two decades after Versailles. A draft convention was circulated, but it was never ratified. As such, it is pretty clear that the world was not yet ready for a rule outlawing aerial bombardment of civilians.

Consequently, in 1945 there was no rule prohibiting the targeting of civilians by aerial bombardment (or by any other type of bombardment, for that matter). If we, therefore, hold that a war crime must be something that the perpetrator knew was wrong at the time of it committed the crime, then the mere act of dropping bombs on civilians was not criminal, as international law was generally understood in 1945.

(2) targeting non-military targets, or targets of slight military importance, is a war crime
This is a more valid charge, since commentators since Grotius have argued that war must, if at all possible, be limited in its scope to spare needless suffering or cruelty. Targeting civilians, then, is acceptable, as long as those civilians have some sort of connection to a militarily significant target. Singling out civilians just because they're easy targets, however, has long been viewed as unacceptable.

I don't know much about the military significance of either Hiroshima or Nagasaki (I find World War I far more interesting than its sequel), so I can't state with certainty that these targets lacked military value. In an era of "total war," however, it is difficult to imagine that a city the size of Hiroshima or Nagasaki did not have some military significance. If that is the case, then dropping bombs on them was not, in and of itself, a violation of international law.

(3) employing particularly barbaric or cruel weapons is a war crime
Again, this kind of prohibition against barbaric and cruel weapons is quite venerable in international law, going back to the papal prohibition against the crossbow. It is an equally venerable tradition to ignore those prohibitions in times of war.

The various Hague conventions prohibited a limited number of types of weaponry, such as bullets that flatten on impact. It is obvious, however, that nuclear weapons were, strictly speaking, never outlawed prior to 1945, for the simple reason that they were never used before that date. Moreover, the atomic bombs, although heinous, were not as deadly as more conventional weapons. The fire-bombings of Tokyo killed more people than did the atomic blasts at Hiroshima or Nagasaki, and did so with astounding brutality, yet few today allege that those weapons were contrary to international law.

If we, therefore, are to claim that the atomic bombs were particularly cruel, such that they would have been condemned by all civilized nations, we need to compare them to the weaponry that was employed by other nations at and before that time. And if those weapons were acceptable, then it is not easy to contend that nuclear weapons were unacceptable.

(4) inflicting more damage or death than is "necessary" is a war crime
It has long been accepted that there is a proportionality requirement in the law of war, but it has also long been acknowledged that it is difficult to determine exactly what is proportionate and what goes over the line. A nation, for instance, is entitled to use its best means to defeat its enemy, but it is not entitled to kill prisoners, or enslave civilians, or sow the enemy's fields with salt as the Romans did with the defeated Carthaginians. A combatant, then, is allowed to go "far enough" to defeat its opponent, but no farther. But where is the line, and did the Americans cross it in 1945?

That is not an easy question to answer, and I dare say that this point has led to most of the controversy surrounding the bombings of Hiroshima and Nagasaki. This is the point, after all, that the defenders claim that the bombings were necessary to end the war -- that, without them, the Japanese would have fought on into 1946 and beyond. As with all counterfactual questions, however, this is unanswerable.

My feeling (and it is only a feeling) is that the atomic bombs convinced the Japanese to surrender, and that no other weapon (or event -- not even the intervention of the Soviets in the waning days of the Pacific War) would have done so. As such, they were necessary.

In conclusion, therefore, I lean toward absolving the Americans of the charge of war crimes. I will note, however, that this absolution only applies to acts committed in 1945. I would have a decidedly different answer for any post-1945 atomic bombings.

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joefromchicago wrote:

Ominous? Really?

Quite. Truly frightful.

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Craven de Kere wrote:
Agreed, this is because of a change by a recognized legal authority in terminology. Below, you will atttempt to compare this and I charge that the comparison is flawed because there was no legal authority to make up crimes.

You're getting into apples-and-oranges territory here. If you're looking for a "recognized legal authority" in international law, you won't find one. Or, rather, you'll find many. Since every nation is sovereign, every nation is entitled both to interpret and adminster the law of nations, just as in a Hobbesian state of nature each individual is entitled to act as judge, jury, and executioner on his own behalf.

Joe, you brought up the comparison between international law and national law and when I get into it the apples/oranges nature of national law and international law is my doing?

Neat trick.

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Craven de Kere wrote:
No Joe, this is not equitable.

You talk of "equity?" Then you're talking about some extra-legal standard.

Yeah, like the apples/oranges standard. I am telling you that it is apples/oranges to compare national law on rape to international law.

In your preceeding comment you seem to agree, so long as this flawed comparison is ascribable to me.

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Craven de Kere wrote:
If I so desire, I can't create a tribunal conflate laws, invent some new ones and try and execute people.

That's because you're not a nation -- at least, not until you get your own thermonuclear device.

I am working on it.

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Craven de Kere wrote:
To compare an established legal system's variance in wordings of laws to Nuremberg's self-granted authority, non-traditional interpretation of laws and non-traditional application is misleading.

How so?

Because it's apples and oranges Joe, because there is no central authority in international law it is not comparable to the established legal authority's workings.

In international law, when the plaintiff can also be the judge, vacillation on the part of the court takes on the quality of victor's justice.

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Craven de Kere wrote:
What precedent do you have in mind?

Primarily the Llandovery Castle case.

Patzig's decision to fire upon it was not part of any order from above. Are you talking about the subsequent matter of the lifeboats?

Interestingly, the precedent also involves the same protagonists in similarly set trials.

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Craven de Kere wrote:
False, denotation and connotation are contingient on the definition itself. They do nothing whatsoever to help you establish a rule that a word needs to be interpreted a certain way.

The connotation is contingent on the denotation, and the denotation is contingent on your whim. This is mere Humpty-Dumptyism.

I agree. I do feel like Alice right now. And like the Queen. I demand a beheading.

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One question: would the Allies have been justified in simply lining up all the Nurnberg defendants and shooting them sans trial?

Legal justification? That would be an interesting question.

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I'm not sure where I read it, but I seem to remember that Hiroshima was the location for building the fighter planes during WWII. What is more interesting is that many of the technology and parts for Japan's planes came from the Brits and US.

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Whoa, I missed that long post Joe.

Compare salt with radioactivity. What are your thoughts?

"Poisoning the well" would be a differentiating factor between the firebombing and atomic bombing.

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Craven de Kere wrote:

Joe, you brought up the comparison between international law and national law and when I get into it the apples/oranges nature of national law and international law is my doing?

Neat trick.

Not any kind of trick at all. I mentioned the analogy to a domestic legal code as an analogy. As with all analogies, there are points of comparison as well as points of divergence -- if there were none of the latter, then it wouldn't be an analogy at all -- but they are, in the end, purely illustrative, not substantive. You, on the other hand, seem to want some sort of "recognized legal authority" in international law, akin to the kind that one finds only in the domestic legal sphere. By doing so, however, you impose an inappropriate domestic legal standard on international law. That, I contend, is an apples-and-oranges kind of approach to international law.

Craven de Kere wrote:

Yeah, like the apples/oranges standard. I am telling you that it is apples/oranges to compare national law on rape to international law.

Give it a rest.

Craven de Kere wrote:

In your preceeding comment you seem to agree, so long as this flawed comparison is ascribable to me.

What?

Craven de Kere wrote:

Because it's apples and oranges Joe, because there is no central authority in international law it is not comparable to the established legal authority's workings.

I'm glad you're finally realizing that.

Craven de Kere wrote:

In international law, when the plaintiff can also be the judge, vacillation on the part of the court takes on the quality of victor's justice.

"Vacillation?" You'll have to explain that one.

Craven de Kere wrote:

Patzig's decision to fire upon it was not part of any order from above. Are you talking about the subsequent matter of the lifeboats?

Yes.

Craven de Kere wrote:

I agree. I do feel like Alice right now. And like the Queen. I demand a beheading.

Ah, I see. So when you said that you didn't want to pursue this digression further, what you meant was that you didn't want me to have the last word. I understand.

Craven de Kere wrote:

Quote:
One question: would the Allies have been justified in simply lining up all the Nurnberg defendants and shooting them sans trial?

Legal justification? That would be an interesting question.

And your answer?

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No offense, gentlemen, but i don't think either of you are getting anywhere with this discussion. So far, i've seen one a propos comment on "the law of nations" and "war crimes." That was Joe's reference to its inherent Hobbsian nature. It is, was and always has been, ". . . a war of all against all." To a certain extent, but without the condemnatory tone, i agree with Craven that there is a lack of legal authority in the proceedings at Nurnberg--but then, as Joe points out, there is no "background" legal authority in such matters, and that position begs the question.

Finally, as Joe and so many others here have pointed out, the intentional bombing of civilian population centers was common in this war, right across the globe, and fire-bombing, in the East End of London, in Hamburg, in Dresden and in more than 60 cities in Japan, was a far more destructive and horrible set of events than Hiroshima and Nagasaki.

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Craven de Kere wrote:

Compare salt with radioactivity. What are your thoughts?

All things being equal, I'd rather put salt on my french fries than plutonium.

Craven de Kere wrote:

"Poisoning the well" would be a differentiating factor between the firebombing and atomic bombing.

I hesitated to get involved in this discussion for two main reasons:

First, although I know a good deal about international law, my primary interest lies in the pre-1900 era (to be more precise, the pre-1800 era). I am comfortable in forming opinions on the state of international law circa 1945, but it's not a subject in which I'm particularly interested.

Second, my knowledge of twentieth century international law greatly exceeds my knowledge of World War II, which, in turn, greatly exceeds my knowledge of atomic weaponry. I have no idea, for instance, what scientists expected the after-effects of the atomic bomb might be (I read Hersey's Hiroshima many, many years ago -- and that's probably the last research I did on the subject). Indeed, I have only a vague idea of what those effects actually are.

The analogy between the destruction of Carthage and the atomic bombings is, I think, interesting. Certainly, under commonly held views of international law, up to and through 1945, it was regarded that this kind of permanent destruction was unacceptable. Many theorists commented upon Thucydides's account of the Peloponnesian Wars, where it was standard practice to destroy the enemy's olive trees (which take many years to reach maturity), and they uniformly condemned that practice as contrary to the law of nations.

If the atomic bombs, then, had the forseeable effect of contaminating the area for generations, then I would be inclined to view that as, at least arguably, a violation of international law. The fact that people are still living in Hiroshima and Nagasaki, I think, tends to militate against that conclusion, but I'm willing to be persuaded.

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joefromchicago wrote:

Craven de Kere wrote:
Compare salt with radioactivity. What are your thoughts?

All things being equal, I'd rather put salt on my french fries than plutonium.

I suspect that the Japanese hold similar preferences.

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I have no idea, for instance, what scientists expected the after-effects of the atomic bomb might be (I read Hersey's Hiroshima many, many years ago -- and that's probably the last research I did on the subject).

From memory I have the impression that they at least knew of radioactivity and its dangers.

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Indeed, I have only a vague idea of what those effects actually are.

I have a more acute awareness of what they are. I have met, for example, someone who claimed to have been born without genitalia in what he ascribed to the radioactivity.

He went through the first portion of his life as a girl, and only at puberty did everyone figure out what was up.

Now, I was a child at the time, and can't now verify my more scientific curiosity (namely whether his father's exposure really was cause for his deformity) so I settled for subsequent study of the bombings' effects in my adolescent years.

This, coupled with the, to me, interesting nature of the subject has sparked a personal interest and should you feel inclined to read the following the subject will be addressed comprehensively.

Because of the problems associated with use of marker genes in humans this type of assertion is difficult to prove.

The primary scientific methods used to quantify the effects in other areas has not shown much statistical effect in major congenital defects attributable to the bombings. The variance between regular rates of deformity and that of the exposed study groups is not significant enough to make a case for this kind of deformation.

The study of the genetic defects is, at present, inconclusive. That ionizing radiation can and will cause genetic mutation is known. The degree to which it did cause mutation is unresolved due to difficulties of a statistical and pratical (without cyanosis congenital heart defects are not immediately apparent for example, mental and motor retardation are not immediately apparent either).

Examination of DNA will be a more accurate way to study it.

References

Neel JV, Schull WJ: The Children of Atomic Bomb Survivors: A Genetic Study. Washington DC, National Academy Press, 1991.

Satoh C, Takahashi, Asakawa J, Kodaira M, Kuick R, Hanash SM, Neel JV: Genetic analysis of children of atomic bomb survivors. Environmental Health Perspectives 104 (Suppl. 3): 511-519, 1996

Kodaira M, Satoh C, Hiyama K, Toyama K: Lack of effects of atomic bomb radiation on genetic instability of tandem-repetitive elements in human germ cells. American Journal of Human Genetics 57: 1275-1283, 1995

Asakawa J, Kuick R, Neel JV, Kodaira M, Satoh C, Hanash SM: Genetic variation detected by quantitative analysis of end-labeled genomic DNA fragments. Proceedings of National Academy of Sciences of the USA 91: 9052-9056, 1994

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The analogy between the destruction of Carthage and the atomic bombings is, I think, interesting. Certainly, under commonly held views of international law, up to and through 1945, it was regarded that this kind of permanent destruction was unacceptable.

I don't think permanent is the factor so much as punitive measures against subsequent generations. Surely measures that have a direct and acute effect on unborn generations are to be frowned upon.

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Many theorists commented upon Thucydides's account of the Peloponnesian Wars, where it was standard practice to destroy the enemy's olive trees (which take many years to reach maturity), and they uniformly condemned that practice as contrary to the law of nations.

I'll note that this is not permanent either.

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If the atomic bombs, then, had the forseeable effect of contaminating the area for generations, then I would be inclined to view that as, at least arguably, a violation of international law.

Whether or not this was clear at the time is something I am not certain of. I do recall knowledge of the radioactivity excisting and I do recall swift interest by Americans in studying the effect on humans but do not know what knowledge existed as to the cross-generational effects.

Quote:

The fact that people are still living in Hiroshima and Nagasaki, I think, tends to militate against that conclusion, but I'm willing to be persuaded.

The radioactive fallout, for the most part, did not fall onto Hiroshima and Nagasaki's hypocenters.

90% of the nuclear material rose into the atmosphere and the fallout for Hiroshima went north east and fell in black rain onto the Koi and Takasu regions. The fallout for Nagasaki went east to the Nishiyama region.

Atmospheric detonation of a nuclear devide does not cause concentrations of radioactivity at the hypocenter like an underground test would. The gamma ray contamination does not cause ordinary non-radioactive materials to become radioactive and as 90% of the bombs' radiation consisted of gamma ray radiation the poisoning of the well was mitigated.

The atmospheric detonation caused neutron radiation's effects (which does contaminate and make radioactive ordinary materials) to be far less severe than many of the ground level testings that followed.

The longest lasting (2 year half life) radionuclide was cesium-134. The residual radioactivity was initially very high but decayed quickly.

References: Shigematsu I, Ito C, Kamada N, Akiyama A, Sasaki H: Effects of A-bomb

But I do not know why you are using, as the measuring stick whether or not the regions are inhabitable now. Truth to tell the radioactivity in the regions is currently negligible.

But the cross-generational effect has been well documented. Surely the olive trees too would have grown in this time, I'll posit that the effects have been more acute (as in killing people directly) and just as long lasting.

The joint American-Japanese Radiation Effects Research Foundation documents deaths they attribute to the bomb as late as 1990.

So Joe, I'm not sure that permanent scorched earth is the only acceptable criteria.

These bombings differed from the many ways in which civilians were slaughtered in that it's death toll was neither restricted to the area not was it restricted to those who were born at the time.

Killing babies in a civilian populace is already lamentable but killing unborn people in the future is a decidely different moral and, in my opinion, legal case.

References

Yoshimoto Y, Kato H, Schull WJ: Cancer risk among in utero exposed survivors. A Review of 45 Years Study of Hiroshima and Nagasaki Atomic Bomb Survivors. Journal of Radiation Research (Tokyo) Suppl: 231-238, 1991

Yoshimoto Y: Mortality rates and cancer incidence in prenatally exposed atomic bomb survivors. In: Effects of A-bomb Radiation on the Human Body. Ed by I. Shigematsu, E. Ito, N. Kamada, M. Akiyama, H. Sasaki. Tokyo, Bunkodo Publishing Co., 1995, pp239-246

The immediate effect on survivors included:

Acute radiation syndrome - The immediate effects were vomiting, diarrhea, reduction in the number of blood cells, bleeding, epilation (hair loss), temporary sterility in males, and lens opacity (clouding ) and more. This resulted in deaths because of the acute effect on cell division that the radioactivity caused.

Reference: What the general practitioner (M.D.) should know about medical handling of overexposed individuals. A Technical Document issued by the International Atomic Energy Agency (IAEA-TECDOC-366), Vienna, 1986
Acute deaths included not only those killed by the blast itself but persons who died from radiation exposure up to 60 days later.
Radiation cataract - low levels of visual imparment.

References - Nefzger MD, Miller J, Fujino T: Lens findings in atomic bomb survivors, Hiroshima and Nagasaki 1963-64. American Journal of Epidemiology 89:129-138, 1969

Choshi K, Takaku I, Mishima H, Takase T, Neriishi S, Finch SC, Otake M: Ophthalmologic changes related to radiation exposure and age in the Adult Health Study sample, Hiroshima and Nagasaki. Radiation Research 96: 560-579, 1983

Otake M, Schull WJ: Radiation-related posterior lenticular opacities in Hiroshima and Nagasaki atomic bomb survivors based on DS86 dosimetry system. Radiation Research 121: 3-13, 1990
Though comprehensive psychological studies have been wanting the PTSD was predictably significant resulting in many neurotic symptoms.

References

Lifton RJ: Death in Life--Survivors of Hiroshima. New York, Random House, 1967
Yamada M, Kodama K et al: The long-term psychological sequelae of atomic bomb survivors in Hiroshima and Nagasaki. Proceedings of the Medical Basis for Radiation-Accident Preparedness. III: The Psychological Perspective; 1990 Dec 5-7; Oak Ridge

The long term, cross-generational effects must be considered in the moral case for this act.

Ionizing radiation causes DNA mutation. In addition to the somatic mutation the survivors died from those exposed could pass on health risks even without in utero exposure through contamination of the gametes.

Prenatal exposure has more documented effects in in utero exposure victims than gametes.

Growth impairment (negligible difference to the tune of 0.5 cm and 0.5 kg on average)
Reference - E Nakashima, "Relationship of five anthropometric measures at age 18 to radiation dose among atomic bomb survivors exposure in utero," Radiation Research 138:121-126, 1994
Mental retardation (magnetic resonance imaging of individuals with mental retardation from in utero exposure show distinctive physical abnormalities in the brain structure that is arguably attributable to the exposure). Throughout the 1950s IQ testing was performed and a loss of 5 IQ points was attributed to the bombings among in utero exposure victims.

References -
M Otake, WJ Schull, H Yoshimaru, "Brain damage among the prenatally exposed," Journal of Radiation Research 32(suppl):249-264, 1991.
M Otake, H Yoshimaru, WJ Schull, "Severe mental retardation among the prenatally exposed survivors of the atomic bombing of Hiroshima and Nagasaki: A comparison of T65DR and DS86 dosimetry systems," Congenital Anomalies (Senten Ijo) 29:309-320, 1989. (based on RERF Technical Report 16-87)
Mortality - Excess deaths attributable to prenatal exposure from the bombs has resulted in deaths mostly related to cancers (though there are other causes).

References

Yoshimoto Y, Kato H, Schull WJ: Cancer risk among in utero exposed survivors. A Review of 45 Years Study of Hiroshima and Nagasaki Atomic Bomb Survivors. Journal of Radiation Research (Tokyo) Suppl: 231-238, 1991 (Also available as RERF Technical Report 4-88, and Lancet 2:665-669, 1988)
Yoshimoto Y: Mortality rates and cancer incidence in prenatally exposed atomic bomb survivors. In: Effects of A-bomb Radiation on the Human Body. Ed by I. Shigematsu, E. Ito, N. Kamada, M. Akiyama, H. Sasaki. Tokyo, Bunkodo Publishing Co., 1995, pp239-246

For summaries of all of these references please see the website of the previously mentioned Radiation Effects Research Foundation: http://www.rerf.or.jp

This adds another angle I wish for you to explore in that the imprecision of the fallout and it's widespread effect undermines the case for military targeting.

The cross generational effects of the in utero exposure, to take but one cross generational example, are something that I posit goes beyond the traditionally accepted norms of warfare.

In rhetoric I don't expect you to take seriously I might call it a "crime against humanity" in the "traditional sense". The prenatal exposure and subsequent risks ranging from mental and physical health to mortality are a very different case from, say, the fire bombings.

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

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