District Court of Tokyo

“ For example, schools, churches. temples, shrines, hospitals and private houses cannot be classed as military objectives, even under conditions of total war. If the concept of total war were to be taken to imply that everyone who is a national of a belligerent State is a combatant, and that all means of production are means of injuring the enemy, there would arise the necessity to destroy the whole population and all the property of the enemy, and it would be meaningless to distinguish between a military objective and a non-military objective. ”

“ This may perhaps have been due to the fact that international law was still in an undeveloped state, that feelings of hostility were so strong against the enemy or the heathen, or else that the progress of weapons in general was so gradual. This, however, has not always been the case, as is evident from the existence of the Treaties prohibiting the use of dum-durn bullets and poisonous gases, referred to above. Thus, for a weapon to be legal it is not enough that it is a new weapon; and a new weapon must naturally be subjected to the examination of positive international law. ”

“ As already stated, the power of destruction and damage of the atomic bomb is tremendous, and even such a small-scale bomb as the one dropped on Hiroshima and Nagasaki discharges energy equivalent to 20,000 tons of conventional bombs. It is clear that the explosion of an atomic bomb of such power of destruction will bring about the almost complete destruction of a medium-sized city, to say nothing of the distinction between military objectives and non-military objectives. ”

“ As for the contention that a State cannot waive the claims of its nationals, who are different subjects of law, the contention would surely be justified if the claims of nationals referred to meant the rights of its nationals under international law. However, it must be pointed out that a State has the power to waive the claims of its nationals under municipal law. A State has, as a function of its sovereignty, the power to create, modify and extinguish rights and duties of its nationals in accordance with the due process of its municipal law ”

“ Japan waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of a state of war, and waives all claims arising from the presence, operations or actions of forces or authorities of any of the Allied Powers in Japanese territory prior to the coming into force of the present Treaty. It would seem clear that the 'claims of Japan' which were waived by these provisions include all the claims which Japan has on the basis of treaties and customary international law. ”

“ The doctrine of sovereign immunity is applied not only to the State but also to the highest executive organs of the State, including the President, and it is held that these organs do not incur liability as individuals for their unlawful acts committed in the performance of their duties. It is true that, as the plaintiffs contend, the English doctrine that 'the King can do no wrong' has not been adopted as such by the United States, and how the doctrine of sovereign immunity, quite similar to the English doctrine, has come to be applied in the United State, is not well known. ”

“ Further, whereas the distinction between land, sea, and air warfare is based on the place of hostilities and their purpose, there would seem to be ample ground for the view that the laws and regulations respecting land warfare may apply by analogy to the aerial bombardment of a city, since in effect the latter is no more than bombardment on land.
(7) What, then, is the distinction between a defended city and an undefended city? In principle, a defended city is a city which resists an attempt at occupation by land forces. ”

“ As a preliminary for judging how the act of atomic bombing referred to above is to be estimated in positive international law, we will begin by considering what are the rules of international law that have come into existence among modern States with regard to warfare, especially acts of hostilities, since the latter half of the nineteenth century. ”

“ A city even with defence installations and armed forces cannot be said to be a defended city if it is far away from the battlefield and is not in immediate danger of occupation by the enemy. Since there is no military necessity for indiscriminate bombardment, only bombing of military objectives there is permissible. ”

“ What has been stated above with respect to the case where an individual brings a claim in international law before the municipal courts of Japan or the United States applies with equal force to the case where an individual brings a claim for damages before the courts of Japan or the United States on the ground that the act constitutes a tort under the law of Japan or the United States. There is no need to repeat the conclusion that the individual cannot ask for redress before the courts of Japan or the United States with respect to his claim under municipal law. ”

“ It is difficult to deny that the concept of a military objective, though prescribed by various expressions in these treaties, is not necessarily static in content but may change with time, and its scope tends to be enlarged under conditions of total war. ”

“ In such a case, however, responsibility cannot be imputed to the person who gave the order for the act, as an individual. Thus in international law damages cannot be claimed against President Truman of the United States of America who ordered the atomic bombing, as it is a principle of international law that the State must be held directly responsible for an act of a person done in his capacity as a State organ, and that that person is not held responsible as an individual. ”

“ It is undeniable that often in the past although a new weapon was objected to, at its first appearance, in various interested quarters, it nevertheless came to be regarded as lawful with the advance of civilization and the development of science and technology. ”

“ To illustrate this, an example often cited in the textbooks may be given, of the provisions of the St. Petersburg Declaration of 1868 prohibiting the use of projectiles under 400 grammes which are either explosive or charged with combustible or inflammable substances. The reason for the prohibition is explained as follows: such projectiles are small and just powerful enough to kill or wound only one man, and as an ordinary bullet will do for this purpose, there is no overriding need for using these inhuman weapons. ”