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Harry Truman's A-bombing of Japan left intact ethics and law page 3

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Date published: 5/28/2001


I would also caution Hornberger on being so quick to say that dropping the bomb violated international law in 1945. First-rate legal scholars disagree whether its use contravened legal norms at that time. One thing is clear. Lawful military targets existed in both cities. Both cities produced war materiel. In fact, Japan had largely disseminated its war-factory production away from large factories and into small shops and homes to avoid conventional targeting by B-29s.

International law has always permitted targeting military objectives, a category that includes combatants, defended places, and objects or places that somehow make an effective contribution to the enemy war effort.

In developing the laws of war after World War II, the concept
of incidental or collateral damage (e.g., to civilians and civilian property) was recognized as tragic but lawful. Limiting collateral damage, however, is accomplished by the pre-attack concept of "proportionality," which states that the civilian loss of life and property incidental to lawful attacks must not be excessive in relation to the concrete and direct military advantage gained.

Therefore, under today's law of war, unintended civilian casualties--which might occur, for example, when a laser-guided bomb hits a passenger train instead of a munitions train--are a tragedy of war, but not a war crime, as long as the intended target was military in nature and the standard of proportionality was met before the targeting decision.

In 1945, however, the concept
of proportionality in aerial attacks was not as mature as today. The Fourth Geneva Convention (regarding the protection of civilians) was developed after the war, as was Protocol I (1977), which first codified the concept of proportionality.

Nevertheless, U.S. aerial campaigns in World War II focused, by policy, on military objectives. Collateral damage in places like Dresden in April 1945 and during the March 1945 Tokyo fire bombings (which killed more people than the A-bombings of Hiroshima and Nagasaki) was horrific--but no war crime.

The Allies bombed these cities because they were where war production existed, where soldiers were garrisoned, where communication and transportation centers were located. Unfortunately, those places also were where civilians lived. Even prosecutors in the Allied-led Nuremberg and Tokyo war-crimes tribunals resisted charging the vanquished leaders and for the Axis air-bombing of cities. The law was that vague.

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