Groundbreaking A-bomb ruling in 1960s Japan stemmed from courage, resolve of judge, lawyer

The atomic-bomb trial featured in public broadcaster NHK’s morning drama “Tora ni Tsubasa” (The Tiger and her Wings) was a civil lawsuit challenging the legality of the atomic bombings of Hiroshima and Nagasaki. The drama’s main character, Tomoko Sada (played by Sairi Ito), is modeled on Yoshiko Mibuchi, one of Japan’s first female lawyers and the first female court chief, who took part in the lawsuit.

Akira Takakuwa, one of three judges on the case who drafted the text of the ruling, recalled during an interview with the Mainichi Shimbun in 2018 that the case required courage. Below is a Mainichi Shimbun article on the case originally published in its Osaka morning edition on July 6, 2018. The ages and titles of people in the article remain as they were at the time of publication.

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Judgment 55 years ago deems atomic bombings a violation of int’l law

July 7, 2018 marked a year since the adoption of the Treaty on the Prohibition of Nuclear Weapons. A court ruling contributing to this treaty came half a century earlier. It was handed down in the Tokyo District Court on Dec. 7, 1963, in what was known as the “Shimoda case.” It was the first time in the world for a court to rule that the atomic bombings of Hiroshima and Nagasaki, which indiscriminately killed civilians, violated international law.

Akira Takakuwa, 81, a Tokyo resident and one of three judges who drafted the ruling, told the Mainichi Shimbun, “It was a task requiring a great deal of courage. Learning from the past, each country should persistently negotiate toward the treaty’s enforcement.”

The lawsuit was launched in 1955 by five atomic bomb survivors from Hiroshima and Nagasaki, demanding state compensation. Among them was Ryuichi Shimoda, who lost five children to the Hiroshima bombing. (Shimoda himself died in 1964 at age 65.)

Takakuwa, at the time a new judge in his 20s, took charge of the proceedings just before the case concluded. Since there was no international law expressly prohibiting the use of nuclear weapons, he considered the illegality of the bombings by going through war laws and regulations dating back to the latter half of the 19th century. After consultations with the presiding judge and others, a course of action was settled, and Takakuwa spent a little under three months drafting the text of the ruling.

The court decision noted that the Hague Convention on land warfare (adopted in 1899 and revised in 1907) and other treaties prohibited attacks on non-combatants in undefended localities and the use of poison gas weapons. It accordingly judged that the destruction of Hiroshima and Nagasaki, where many civilians resided, constituted “indiscriminate bombing of undefended cities,” and concluded that “cruel bombings such as this violate the fundamental principles of the laws of war.”

At the time, the nuclear arms race between the United States and the Soviet Union was intensifying amid the Cold War. Takakuwa stated, “It was a time when people were afraid to speak and question whether the possession of nuclear weapon was right or wrong. It took courage to denounce U.S. military actions.” As there were limits to accusing U.S. state actions in a Japanese court, the judges rejected the request for compensation. The plaintiffs didn’t appeal and the ruling was finalized.

The Shimoda case later came to influence international trends regarding the illegality of nuclear weapons. In 1996, taking the Shimoda case into consideration, the International Court of Justice issued an advisory opinion stating that “the threat or use of nuclear weapons would generally be contrary to international humanitarian law.” The Tokyo case was also taken up during negotiations for the Treaty on the Prohibition of Nuclear Weapons, laying the groundwork for the accord.

Takakuwa praised the treaty while calling on the Japanese government, which has been passive about it, to declare its support.”It’s a big step forward. Japan should state clearly that the treaty is desirable,” he said.

The strong resolve of an ailing A-bomb survivor

Documents on the 1963 court ruling, preserved for many years by lawyers who worked on the case, reveal the hardships faced by attorneys challenging the legality of actions by a war victor, and the desire of the atomic bomb survivors to prevent such horrors from happening again.

Yasuhiro Matsui, a lawyer who represented the plaintiffs, kept case materials at his home in Tokyo. These included the complaint, preparatory documents, the text of the ruling and letters exchanged between the plaintiffs and their attorneys. After his death in 2008, his eldest son Katsu, 65, donated them to the Japan Association of Lawyers Against Nuclear Arms in Saitama Prefecture.

Shimoda was exposed to the atomic bombing of Hiroshima at the age of 47, at his home about 1.4 kilometers from the hypocenter. He lost five children aged 4 to 16 to the bombing, and all seven members of his younger brother’s family, who lived nearby, also died. Shimoda himself suffered burns to his right hand, his stomach and back, and became unable to work due to internal organ damage.

Several letters from Shimoda to Matsui remain. In one letter from September 1961, before the ruling, he wrote, “I’m not well. I’ve been diagnosed with A-bomb disease.” But he added, “If it’s necessary, I’ll go to the court, whatever the time.” In another letter in December 1963, after the ruling was handed down, he expressed his delight, saying, “This will be a great source of strength.” He ended the letter by saying he wanted to do all he could to support the lives of A-bomb survivors, at any cost, but the year after the ruling, he passed away.

The idea of directly challenging the legality of the atomic bombings in lawsuits came from lawyer Shoichi Okamoto, who had also served as a defense attorney in the Tokyo Trials, and it was later passed on to the young lawyer and Hiroshima native Matsui.

In a letter Okamoto wrote to Matsui in April 1957, he commented on terminology regarding the atomic bombings in preparatory documents, saying, “The phrase ‘strong destructive power’ is a bit weak, so how about changing it to ‘extremely cruel annihilation by means of special harmful influence’?” On the other hand, Matsui wrote to Okamoto, “The logic regarding the right to claim compensation won’t pass,” revealing the difficulty of holding a state responsible for its acts. Katsu stated, “My father’s relatives were also hit by the atomic bomb. He was driven by anger against the atomic bomb and a strong conviction that such acts should never be accepted.”

More than half a century on from that time, efforts of the plaintiffs and lawyers bore fruit in the form of the nuclear weapons ban treaty. Toshinori Yamada, an adjunct lecturer specializing in international law at Tokyo’s Meiji University, stated, “The court documents show the painstaking efforts and ingenuity of this pioneering work, and are valuable.”

(Japanese original by Itsuo Tokubo, Osaka City News Department)

Treaty on the Prohibition of Nuclear Weapons

The Treaty on the Prohibition of Nuclear Weapons, which deems nuclear weapons illegal, prohibits not only their use but also their development, testing, production and possession, as well as the threat of using them. It was adopted in July 2017 with the support of 122 countries, more than 60% of United Nations states. However, the Netherlands opposed it, and some 40 countries including Japan and nuclear powers did not participate in the negotiations. The treaty entered into force on Jan. 22, 2021, following its ratification by 50 states.