Why weren’t the bombings of Hiroshima and Nagasaki considered war crimes?

Source: JordyMeow

 

In 1945, as World War 2 was drawing to a close, the United States dropped two atomic bombs on Japan, first in the city of Hiroshima, and then on Nagasaki. All the United States had to do was gain approval from the United Kingdom. More than a 100,000 civilians were killed, mostly civilians and the event leads to Japan surrender 6 days prior to Nagasaki. This was the only time in history that Nuclear weapons were ever used and its legality is still questioned today.  So, why is it not considered a war crime?

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In brief, one can approach this question down in a few ways:

Were they likely to be considered literal war crimes and open to prosecution at the time? No, because the Allies came up with the definitions and applications of the ideas of war crimes, and exempted themselves very deliberately from prosecution. Were they hypocritical? It was argued by some of those under prosecution for war crimes, and even by some who were more neutral, that there were obvious hypocrisies (aside from the US and UK participating in mass bombing of civilians, you also have things like the Soviet lootings and rapes, as well as mass executions at Katyn, and so on), and that this devalued the usefulness of “war crimes” as a category if it basically only applied to losers in war.

Were they radically morally different from other Allied activities? It depends on how you want to parse out the morality, but they are alike in many ways (though not all) to the use of napalm (firebombing) against Japanese and, to a lesser but still significant extent, German cities. In these attacks, mass areas were targeted, with deliberate goals of destroying civilian housing and infrastructure, and with the knowledge that many civilians would die. This was especially true of the infamous raids against Tokyo and its environs in March 1945, which killed as many people as the atomic bombings did. One could argue, if one wanted, that the atomic bombs were slightly worse from this perspective: they were considerably more deadly for the area of target destroyed, especially compared to later firebombings, because of their surprise and speed of attack (with firebombings, there are ways to detect the attack ahead of time and flee, and also some measure of defense possible in terms of firefighting and fire breaks; these were not the case with the atomic bombings). The Allies also did warn, in way both vague and specific, about firebombing attacks; they did not warn (contrary to Internet myths) about the atomic bombing attacks. Is this splitting hairs? It doesn’t really matter for this analysis: if you are saying that the atomic bombs were “just as bad or maybe worse” than the firebombings, you probably already are concluding that the indiscriminate targeting of civilians was some measure of “business as usual,” which does not in any way get you off the hook for questions about “war crimes” (in fact, it is even worse — saying you regularly committed similar offenses does not make them less heinous).

Did people at the time worry about the morality of these kinds of attacks? Yes, both inside and outside the US government. There were many people in and out of the US who condemned the attacks, or at least questioned the city-targeting aspects of them. Within the US, even those who plotted to use the atomic bombs saw them as being imbued with special moral hazards, and thought that indiscriminate targeting of cities was potentially not aligned with stated US values. Scientists on the project (at the University of Chicago) warned that targeting cities with the first bombs would lead the world down a very dark path, and could not be justified (see the Franck Report). At higher levels, even the US Secretary of War, Henry Stimson, warned Truman that indiscriminate firebombing might allow the US to exceed the reputation of the Nazis for atrocities, and worked (in a way that one might or might not judge meaningful) to keep the city of Kyoto off the target list partially as a means of mitigating the moral issues. In a forthcoming paper, I have argued that I think Truman himself saw the bomb in these terms, and that in agreeing with Stimson that Hiroshima, not Kyoto, should be the first target of the atomic bombings, he was (incorrectly) under the impression that the bomb would be first used on a “purely military target” (as he put it) and not a city. He did not, I argue, learn Hiroshima was in fact a city (and that 90% of the casualties were civilian) until August 8, 1945, as an aside. All of which is to say, if someone says to you, “nobody had moral issues with this at the time,” they are wrong. Plenty of people, including the people who ordered the atomic bombs be dropped, recognized that this kind of bombing did present moral hazards, though of course they did not think they were considering them “war crimes.” But it opens the door to us considering them as moral hazards without being accused of being ahistorical.

Did the atomic bombings violate any treaties the US had signed at the time? No. The US had not signed many treaties on the laws of war at the time, and the ones it did sign did not really come into play. One can make a very stretching argument that the atomic bombings might fall under the prohibition of the use of poisonous gases, but it is a stretch (they did not create significant contamination; the deaths were primarily from fire and blast effects).

Would the atomic bombings of Japan count as war crimes if they were done today? The US has very lengthy guidelines for how it interprets the Geneva Conventions and the Law of War today, and how nuclear weapons play into that. In principle such an attack plan — target the center of a city for the purpose of destroying the city and terrorizing a country into surrender — would probably not be considered a justifiable reason to use nuclear force, as it would violate the principles of discrimination (it would unduly target non-combatants) and likely proportionality (it is overkill for the goals it is trying to accomplish). This does not mean that you could not come up with a rationale for doing the same thing (e.g., you could re-frame the justification around military necessity, the limitation of conventional forces to do the same job, a focus on the military and industrial facilities in the target zone, etc.), but the rationale used at the time, which is to say, the destruction of a civilian population for the purpose of convincing Japan to surrender, would probably not pass the legal scrutiny of the JAGs. But these kinds of questions are notoriously difficult to parse in the abstract, so who really knows. Current US plans for the employment of nuclear weapons are structured around the ideas of discrimination, necessity, and proportionality, and so instead of saying, “put a huge explosion in the city center” they are about how you would destroy some specific military capability in the city. Is that a moral difference? This is a question for another day. But again, I suspect the US would not find it easy to justify the attacks under the present Geneva Convention it has signed to (some years after World War II) which is much more explicit about the illegality of targeting cities in this way. But we should also note, while we are on the subject, that the US has found the means to justify a lot of other kinds of city bombing after WWII, which makes me a wary about concluding that the lawyers could not find a way to justify it. They are clever, after all.

In short: by modern standards they would probably not be permissible actions. By the standards of the time, they ride the line of what the Allies considered permissible when they were doing them, though this was seen by many as hypocritical. In any event, the fact that they were credited with ending the war (whether they did or not is a hot topic of scholarly debate), and the fact that the Allies created the war crimes tribunal, meant that not only were there no negative consequences for those who were involved in the bombings, but in fact almost all of those who were involved saw their careers flourish as a result of them.

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Were there any significant cases of Allies being charged with war crimes after the Second World War or was it solely the “losers” who faced repercussions?

I don’t know of any cases of the WWII allies being tried under international law. There have been domestic court martial trials for individuals (e.g. Lt. William Calley and the My Lai Massacre).

It is a cynical thing to say, but in general, it is the losers of wars that end up in the docket at the Hague (or Nuremberg), not the winners. The US is in particular very wary about being bound by the judgment of international law (they do not recognize the authority of the International Court of Justice and have a very complicated relationship with the International Criminal Court), in part because it will not submit it actions to international scrutiny or approval. If that makes you wonder about the utility of things like the Geneva Conventions, you would not be the first, but perhaps we should not let the perfect be the enemy of the good — it is probably better to have norms that are occasionally broken than not to have them at all.

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