RICHARD A. FALK
On December 7, 1963, the District Court of Tokyo handed down a decision involving claims against the state brought by injured surviviors of the atomic attacks on Hiroshima and Nagasaki. The opinion of the Japanese court in the case of Shimoda and Others v. Japan has been recently translated into English.
The Shimoda opinion is long and complex. Only its most relevant features can be outlined and some tentative interpretations suggested. Five residents of Hiroshima and Nagasaki sought compensation from the Japanese Government for damages sustained by the atomic blasts. Japan was the defendant because in the Peace Treaty ending World War II Japan waived the claims of its nationals against the United States, but the United States was the real defendant--that is, the state whose alleged wrongs gave rise to the damage. It is an irony of the proceedings that the role of the Japanese Government as defendant required it to argue in behalf of the legitimacy of atomic attacks on two of its own leading cities. One senses the reluctance of Japan to press "its side" of the case. In the complaint, which is printed with the opinion, the claimants set forth the facts of the attack, the legal basis for their recovery, and specify the damage that they have individually sustained. The defense does not dispute the facts of the attack or damage, but confines itself to arguing that international law did not prohibit the use of atomic bombs by a belligerent and that, in any event, the Japanese Government has no responsibility to compensate individual victims of atomic damage.
The court recites the agonizing facts, examines, with the help of three expert advisers, the status of atomic weapons and arrives at several important conclusions. First, that it is neither possible, nor necessary, to conclude expressly that international law forbids the use of atomic (or nuclear) weapons, although the reasoning of the opinion suggests that such weapons would almost always be illegal if used against cities. Second, that the attacks upon Hiroshima and Nagasaki caused such severe and indiscriminate suffering that they did violate the most basic legal principles governing the conduct of war. And third, that these claimants have no remedy, since international law does not yet allow individuals, in the absence of an express stipulation in a treaty, to pursue claims on their own behalf against a government, especially against their own government.
These conclusions have great interest for international lawyers because they constitute the sole attempt by a legal tribunal to assess the relevance of