National Implementation of IHL
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Shimoda case (Compensation claim against Japan brought by the residents of Hiroshmina & Nagasaki), Tokyo District Court, 7 December 1963
Tokyo District Court
Hanrei Jiho, vol. 355, p. 17; translated in The Japanese Annual of International Law, vol. 8, 1964, p. 231.

Residents of Hiroshima and Nagasaki jointly brought an action against the government of Japan for the damages they and members of their families suffered as a result of the atomic bombings by the United States in August 1945. Among other things, it was alleged that the dropping of the atomic bombs was an unlawful act and that Japan's waiver of claims for damages under domestic and international law against the US gave rise to an obligation for the government of Japan itself to pay damages. The action was dismissed.

The State contended that since neither international customary nor treaty law prohibited the use of atomic bombs at the time, the question of a violation of positive international law did not arise. The Court agreed that the use of nuclear weapons was not expressly prohibited by international law, but it felt that the use a particular weapon was also to be ascertained in light of the principles of international law applicable to the conduct of warfare, in particular the prohibition on indiscriminate bombardment of an undefended city and the prohibition on inflicting unnecessary suffering. Although no generally applicable treaty relative to aerial bombardment was in force at time of the bombing, the Court held – on the basis of the Draft Rules of Air Warfare (1923) and, by analogy, on the rules applicable to bombardment by land and naval forces – that the indiscriminate bombing of undefended cities was unlawful under customary law. It further stated that the principle of distinction between military and non-military objectives had not been nullified by the supposed adoption by the belligerents of a doctrine of total war. The bombings of Nagasaki and Hiroshima, as undefended cities, were thus held to have been unlawful acts.

Ruling that individuals did not have rights under international law unless this was specifically recognized in a treaty, the Court took the view that there was no general way open to an individual to claim damages directly under international law. A claim for damages caused by a State to a national of another State could be based on diplomatic protection, but as it is widely recognized in classical international law, any such claim is in fact the State's own claim for damages suffered by its nationals and not the claim of an individual. Thus Japan could waive, and did waive, all its claims – including those deriving from diplomatic protection – against the US under the peace treaty of 1951. The Court further held that claims by Japanese nationals under domestic law had also been waived.

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