Can you justify a war crime?

Hiroshima: Approximately 120,000 immediate Japanese civilian casualties, out of an active population of 250,000. Nobody took shelter, because there was no large wave of incoming bombers, only one unescorted B-29 (Straight Flush) with three more (Enola Gay, The Great Artiste, and Necessary Evil) arriving a while later. They were assumed to be recon in advance of a larger formation. Little Boy detonated as an airburst 2,000 feet above the city. At least 2,000 American citizens died at Hiroshima, most of whom were not prisoners of war, but rather Japanese-Americans who were kept as free-roaming political prisoners, prohibited from returning to the US for fear (by both sides) of espionage. Only 11 American POWs have been positively identified at Hiroshima, but there were hundreds more unidentified POWs, some of which were American. An unspecified number of British, Australian, and Dutch POWs were also killed in the explosion. Essentially all wooden housing in a 5 mile radius was turned to ash, either due to the initial heat shock of the blast, or due to the city-wide fire that resulted from uncontrolled hearth-fires in destroyed homes. The non-reinforced buildings in the city center -- mainly residential and commercial buildings -- were instantly reduced to rubble. Black tile roofing was liquified as far away as a mile's line-of-sight.

The bombing resulted in a negligible military death toll, and a negligible disruption of industry or rail transportation -- even through the city center. Railroads, being so low to the ground, survive nuclear explosions practically undamaged. Rail cars weren't even significantly derailed, due to the bomb detonating above rather than away. The shockwave hit them almost vertically. 75% of the city's production capacity was completely undamaged, and the remainder could have been rebuilt in less than 30 days. This is due primarily to the decentralized locations of factories around Hiroshima, rather than being clustered at the city center.

Nagasaki: Approximately 100,000 immediate Japanese civilian casualties, out of an active population of 230,000. Again, unspecified non-Japanese casualties, some of which were POWs. Again, nobody took shelter, despite the city having tunnels large enough to accomodate 100,000 people. This time it was one B-29 (Laggin' Dragon) followed by only two (Bock's Car and The Great Artiste), and again it was assumed that they were reconning for a larger bombing run. The camera plane Big Stink missed its rendezvous and arrived only after detonation. Fat Man detonated as an airburst 1,500 feet above Urakami Valley. Some portions of the city were spared direct effects from the blast due to the hilly geography of the region and the fact that Bock's Car missed its mark by almost two miles due to cloud cover, resulting in only half of residential structures being destroyed. Exact ground zero turned out to be St. Mary's cathedral, which was at the time the largest Catholic church in Japan. Those buildings not reinforced and not sheltered by hills were, again, instantly reduced to rubble. Hearth-fires did not significantly contribute to the city-wide fire here, which was instead started directly by the blast, which was both larger and hotter than the one at Hiroshima. Again a negligible military death toll, but this time there was a minor disruption of industry. Mitsubishi-owned torpedo, steel, and electricity facilities were badly damaged, but none of these reinforced factory buildings were rendered unusable. It was rather pointless to bomb these, since they were at the time operating at skeleton capacity anyway, due to resource shortfall. Had the war continued, they could have continued operating at those reduced capacities without any significant need for repair. The Nagasaki ship and dock yards, accounting for the primary military significance of the city, were almost completely undamaged by the atomic bombing, being nowhere near ground zero. The docks had previously been damaged by conventional bombing raids, and would also have required some months to be repaired to full capacity. The intended ground zero was actually farther away from the docks, closer to the residential parts of the city.

In total, a full one-fifth of the deaths attributed to both bombs were non-Japanese. This group was partially comprised of Allied POWs, but mainly it was comprised of Chinese, Filipino, Indonesian, and Korean civilians brought to Japan as slave labor.

The atomic bombings achieved no military objective whatsoever. They didn't even produce all that much "shock and awe" outside the regions of Hiroshima and Nagasaki themselves, with the majority of the Japanese population -- not eyewitnesses to the carnage the bombs created -- having no realistic understanding of the damage. It cannot even be reasonably stated that the atomic bombings contributed significantly to the Japanese surrender, not even the timing of it. Japan would have surrendered in the fall of 1945 one way or another. There was no real element of choice at that point. The modern pedagogy that the bombs were dropped "to end the war" is largely propaganda so that American kids don't have to wonder today if their great-grandfathers were accessories to war crimes.

By August 1945 Japan had been attempting truce with and conditional surrender to the US for nearly a year, beginning late in the tenure of Tojo's successor as Prime Minister, the relatively powerless Kuniaki Koiso. All that can really be said about the bombing of Hiroshima affecting the timetable of surrender is that it prompted Hirohito to demand unanimity among the Big Six for unconditional surrender, where previously three of them (primarily Korechika Anami) were holding out for the desire to draw the US into an invasion of Kyushu that would have resulted in millions more casualties on both sides. But the bombing of Nagasaki was totally irrelevant to that process. Even if the bombs had not been dropped, Japan would have needed to accept unconditional surrender by October at the latest, due to their declining domestic conditions and the onset of winter. Insurrection led by the underground Japanese Communist Party was expected no later than midwinter in the absence of a resolution to the war, based on a report that Fumimaro Konoe supplied verbally to Hirohito in February of that year, when he said:

I see all the conditions necessary to bring about a communist revolution being prepared day by day: the impoverishment of daily life; an increase in the level of labour's voice; a pro-Soviet mood, which is the other side of a rise in hostile feelings toward Great Britain and the United States; the reform movements of a ring within the military; the movement of the so-called "new bureaucrats" who ride on this; and the secret manoeuvres of leftist elements who are manipulating this from behind.

Not to mention Stalin's breaking of his neutrality agreement with Japan and the launch of August Storm, the Russian invasion of Japanese Manchuria. Japan's people were starving to death, the military had no oil left, they lost Saipan, they lost Okinawa, they lost Manchuria, and an invasion force was at their border. The atomic bombings were needless, and war crimes for which nobody has ever been convicted. Continuing conventional bombing (which was done anyway), or even no more bombing at all, would have been sufficient to guarantee surrender. Invasion of Honshu would not have been necessary, merely the threat of invasion was significant. This is in full agreement with the 1 July 1946 report of the US Strategic Bombing Survey.

Supposing that, somehow, the bombs were a necessary gesture, it was nevertheless done all wrong. First of all, as already mentioned, the bomb dropped on the city center of Hiroshima did no siginficant damage to anything but civilian life and infrastructure. It should never have been dropped. It was an unacceptable target. The Nagasaki dockyards would have been a valid military target, but they were not targeted either. Not to mention that no advance warning was given to either city to allow for civilian evacuation or seeking shelter.

If the objective was to use the bombs to destroy valid military targets, the plan failed utterly even from the initial planning stage. Kyoto, which had no strategic significance whatsoever, was actually considered to be the main target for the atomic bombing runs until Truman's Secretary of War, Henry Lewis Stimson, struck it from the list for sentimental reasons. Kokura was also spared, purely by random chance. It was the secondary target of Special Mission 13, but Hiroshima didn't need to be aborted. It was the primary target of Special Mission 16, but due to cloud cover was aborted in favor of Nagasaki. Nagasaki wasn't even on the original list of targets, having been selected as the secondary target by Paul Tibbets. Kokura Arsenal would have been an ideal military target, had there been any reason to destroy it that late in the war.

If the objective was to provide a horrifying spectacle for the Japanese government, the plan largely failed there too. It would have been more appropriate to airburst a bomb some miles off Tokyo harbor for that effect, and there needn't have been any significant loss of life. There's no reason why Tokyo harbor couldn't have been targeted. It was within range of Tinian, and indeed it was a target in several of the dozens of "pumpkin bomb" test runs performed by the 15 bombers fitted for nuclear payload.

I offer twelve people as legally culpable for the atomic bombings. In rough order of increasing responsibility:

• Dr. Joyce C. Stearns, as the Site Y liaison in charge of selecting the targets, designating ground zero for each target, and as the originator of the decision to disqualify purely military targets. Picked Kyoto as the most ideal scene of detonation, after being advised that it was diplomatically unwise to suggest the Imperial Palace. Died 1948.

  Stearns is placed at the top of the list because he has the least responsibility of anyone listed. He was a civilian, and had no actual decision-making authority in the chain of command that led to the usage of the bombs. Still, I think he deserves to be on the list, given his contributions. Scientific idealism does not mix well with military pragmatism, and he really should have known better.

• Thomas Ferebee, as bombadier of Enola Gay during Special Mission 13. Died 2000.
• Kermit Beahan, as bombadier of Bock's Car during Special Mission 16. Died 1995.
• William Parsons, as weaponeer of Enola Gay during Special Mission 13, responsible for arming the bomb. Nobody else could have. Died 1953.
• Frederick Ashworth, as weaponeer of Bock's Car during Special Mission 16, responsible for arming the bomb. Nobody else could have. Died 2005.
• Charles Sweeney, as pilot of Bock's Car during Special Mission 16. Died 2004.
• Paul Tibbets Jr., as pilot of Enola Gay during Special Mission 13, and also as Group Commander of the 509th at the time. Still alive and aged 92 as of this writing.
• Carl Spaatz, as overall commander of the strategic bombing of Japan. Died 1974.
• Thomas Farrell, as executive officer of Gen. Groves, and the highest ranking officer actually present at the committee who designated civilian targets for the bombs, and as President Truman's courier to Col. Tibbets giving him the orders to launch. He also signed Little Boy and addressed it to Hirohito. Died 1967.
• Leslie Groves, as unilateral commander of the Manhattan Engineering District (including Project Alberta), and therefore as final military authority over the committee who designated civilian targets for the bombs, and indeed final military authority on the development, construction, and deployment of the bombs. Died 1970.
• Henry Stimson, as Secretary of War, and therefore as the final War Department authority over the committee who designated civilian targets for the bombs. Died 1950.
• Harry S. Truman, as President and commander-in-chief, ultimate responsibility belongs to him. To use his own phrase, "the buck stops here". It was his explicit responsibility to ensure that the bombs were being used against valid targets before he authorized their launch. Were he still alive it would be his prerogative to accept responsibility on behalf of everyone else listed. Died 1972.

My selection criteria here are the people who knowingly and willingly strategically decided, logistically planned, and finally tactically delivered the atomic bombing of civilian targets. Not the people who invented the technology, not the people who constructed the planes or the weapons, and generally not the people who merely relayed orders from above, except where they could have meaningfully dissented. This is the list of people who had the direct power to stop the bombings, even if such a decision would have been punished, even if someone else would have been found to do it at a later time. Each one of these people, for one reason or another, failed the human race in contributing to the misuse of nuclear weapons. The "I was only following orders" excuse didn't work at Nuremberg, and thus I don't see why it should work here.

The legal particulars.

The United States government maintains that there was no international law or treaty that it was signatory to in August 1945 which can be used to consider the atomic bombing of Japan as a war crime, but that's not true.

The bombings can be tried under as many as five articles of the annex of Section IV of the Hague Convention of 1907. The United States and Japan were both party to this convention, and it was in effect at the time (and indeed still is).

Section IV annex, "Regulations respecting the laws and customs of war on land", states (in part):

[...]

Article 22.

The right of belligerents to adopt means of injuring the enemy is not unlimited.

Article 23.

In addition to the prohibitions provided by special Conventions, it is especially forbidden -

To employ poison or poisoned weapons;

To kill or wound treacherously individuals belonging to the hostile nation or army;

To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;

To declare that no quarter will be given;

To employ arms, projectiles, or material calculated to cause unnecessary suffering;

To make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;

To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war;

To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war.

[...]

Article 25.

The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.

Article 26.

The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.

Article 27.

In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.

[...]

The bombings qualify as "war on land" in the sense of the Hague Convention for several reasons:

1. There was no ship-based combat involved, nor bombardment from naval cannons.
2. The bombers did not take off from ships, but rather dry land.
3. The USAAF was a component of the US Army, understood to be a land force.

It was ruled in Japan in 1963 (Shimoda et al. v. The State) that both Hiroshima and Nagasaki at the time qualified as undefended cities:

In principle, a defended city is a city which resists an attempt at occupation by land forces. 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.

Unfortunately, Article 19 of the Treaty of Peace with Japan basically says that Japan is not allowed to pursue claims of reparations over anything that was done during the war, and they have absolutely no redress for their grievances.

Interestingly however, the text also says that "Japanese claims specificially recognized in the laws of any Allied Power enacted since 2 September 1945" can be pursued. Note how it just says "since 2 September 1945" and thus theoretically extends to the infinite future. This can be interpreted, quite credibly, to mean that even today, were "any Allied Power" to enact law that recognized Japanese claims of atrocity against the United States over the atomic bombings, those claims could then be pursued.

More interestingly, for the purpose of the treaty, "Allied Powers" refers to any or all of: Argentina, Australia, Belgium, Bolivia, Brazil, Cambodia, Canada, Ceylon, Chile, Colombia, Costa Rica, Cuba, The Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Honduras, Indonesia, Iran, Iraq, Laos, Lebanon, Liberia, Luxembourg, Mexico, The Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Peru, The Philippines, Saudi Arabia, Syria, Turkey, South Africa, The United Kingdom, The United States of America, Uruguay, Venezuela, and Vietnam.

On the other hand, Article 14 of the same treaty also basically says that no nation is allowed to pursue claims of reparations over anything the Japanese did during the war, either, so you can see why the Japanese government is not enthusiastic about shooting holes in the treaty.

Though the treaty waives the right of the governments involved to claim reparations for acts which occurred during the war, it cannot and does not waive the right of any affected individuals to demand compensation from governments for those same acts, which is further maintained by the above-quoted Section IV annex, Article 23 of the Hague convention of 1907: it is forbidden to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. So nothing in the peace treaty can be taken to disparage any right of individuals to seek redress.

Gratuitous editorializing and dénouement.

The popular Euro-American beliefs that the dropping of two atomic bombs on Japan was strategically necessary, was legal, or is above suspicion are wrong. Period. Let me hear you talk about "harsh but fair" when it's your own families. For some Americans, Britons, Australians, and Dutch... it was. Even if you can't (for whatever reason) sympathize with the weird little yellow people on the other side of the world, know that they were not the only victims. The United States of America also ate its own in dropping those bombs, and the families of the POWs who died have a totally separate case for justice under totally separate articles of war besides the ones I cite above. And they do have a case.

No court in the world has ever even considered their pleas, going on 62 years. Most of the non-Asian American families didn't even know their loved ones died at Hiroshima or Nagasaki until around 20 years ago when it was declassified.

Nor is there any merit to the idea that the bombings were "for the Soviets". First of all, how would that justify the deaths of half a million civilians? Second of all, by the time Truman formally announced at Potsdam that he had the bomb, Stalin already knew all about the Manhattan Project, the Trinity tests, the Alberta project to fit planes to deliver the bombs to Japan, the schematics of Fat Man, how far along it was, and what color it was painted. He knew all this because Manhattan Project physicists Klaus Fuchs and Theodore Hall were Soviet spies for the entire project. Nor were they the only two.