The indiscriminate bombardment conducted by the United States on Hiroshima and Nagasaki of Japan through the use of atomic bombs in August 1945 took 300 thousand lives of Japanese people. Such a bombardment of the Japanese air force on dozens of cities in China for 7 years since 1937 caused incalculable casualties of Chinese people. Although both of them belong to indiscriminate bombardment, the former resulted in the termination of endless human rights abuses caused by the latter. The significance of reviewing the history is that the improvement of human rights is hardly earned, which shall not be forgotten.

 

 

During the 7 years from the Battle of Shanghai in 1937 to December 1944, the Japanese air force, acting as a saber hanging over the Chinese territory, had conducted terrifying indiscriminate bombardment in a large-scale, planned and purposeful manner, claiming countless lives of civilians by bombing and shooting. In the afternoon of August 14, 1937, the Japanese invaders sent more than 100 airplanes to conduct devastating bombardment on Shanghai, causing 1,742 deaths and 1,873 injuries of civilians on that day; 71 flights in four sorties took turns bombarding Yan’an on October 15, 1939, and 50 airplanes invaded the air space of Guilin and bombarded savagely at 7 a.m. on August 24, 1940; during the 6 years from 1938 to 1944, the bombardments on Chengdu was no less than 21 times; the Japanese air force conducted bombardment on Baoshan, Yunnan Province, on May 4, 1942, killing almost 10 thousand immediately and resulting in 100 thousand deaths in a plague afterwards. As the wartime capital, Chongqing suffered from the bombardment of the Japanese air force for most times, longest period and greatest losses: during the six and a half years, the Japanese successively adopted tactics of “high-density, constant and unlimited bombardment,” sending more than 9,000 flights to drop more than 20,000 bombs; according to statistics, the bombardment led to 32,829 direct casualties, 6,651 indirect ones, 172,786 war-affected victims and incalculable property losses. The 7 years of bombardment on China conducted by the Japanese air force was too much to be counted.

 

The U.S. air force started bombardment on Japan in April 1942 while the effective one began with the bombardment on Tokyo in 1945. On March 9, 1945, 334 B-29 Bombers carrying napalm bombs flew to Tokyo, making 83,793 people be burnt to death and a large number of industrial targets be destroyed; afterwards, Nagoya, Osaka and Kobe also suffered bombardments with countless casualties; on August 6 and 9, 1945, the U.S. air force dropped two atomic bombs on two significant Japanese military bases, Hiroshima and Nagasaki, separately, causing 200 thousand casualties and a complete destruction of buildings in Hiroshima, 100 thousand casualties and a destruction of 60% buildings in Nagasaki. 

 

The indiscriminate bombardments conducted by the U.S. and Japanese air forces constitute infringement on human rights while they differ in nature. Terminating and eliminating human rights abusers by means of violence during wartime demonstrates that the contemporary protection mechanism on human rights originates from the opposition process between human rights and human rights abuse and painful lessons in history.

 

 

Apparently, there is a huge difference between the indiscriminate bombardments conducted by U.S. and Japanese forces. During World War II, both the German Nazis and the Japanese forces consider indiscriminate bombardments on civilians as means to win wars, with the purpose of shattering the resistance will of hostile governments, armed forces and civilians as well as eliminating the resistance forces, like what the Nazis did to London. Therefore, blaming both Japanese air forces and U.S. air forces fighting against the Japanese militarism without discrimination is unfair. Differences between the two kinds of indiscriminate bombardments are showed in the following chart:

 

By elaborating the above chart, the differences between the two kinds of indiscriminate bombardments are as follows: firstly, the period of bombardment conducted by the Japanese air force on China is almost in all of the invading period, except after the outbreak of the Pacific War when Japan was not able to continue the bombardment on China, while the bombardment done by the U.S. air force on Japan lasts for half a year; secondly, the direct deaths of Chinese people caused by bombardments conducted by the Japanese air force are incalculable but definitely outnumber that of the Japanese lives lost in the Allied Forces bombardment; thirdly, both cause casualties among non-combatants while they produce different results: the bombardment on China didn’t shatter the resistance will of the Chinese people, but on the contrary, the Chinese air supremacy was greatly enhanced since the “Flying Tigers” (the American Volunteer Group of the Chinese Air Force) came to Kunming to strike a deadly blow on the Japanese forces and developed the “Hump Route” to provide precious military suppliers to the Chinese people; The bombardment conducted by the U.S. air force on cities like Tokyo and Nagoya did not shatter the resistance determination of Japanese militarism until 6 days after Hiroshima and Nagasaki were destroyed by atomic bombs repectively on August 6 and 9, 1945 when Japan declared surrender. The biggest difference between the two kinds of indiscriminate bombardments is that American responded violence with violence in order to terminate the extremely tragic war and protect more people from being deprived of the right to life by the Japanese forces.

 

People around the world sympathize with the civilians killed by the atomic bombs in Hiroshima and Nagasaki while protecting human rights of more people by violating those of the people in Hiroshima and Nagasaki is probably the paradox of human rights protection as well as a kind of a necessary evil during wartime. There are two major theories on the judgment of war—realism and pacifism. Taking a dominant position, the former is interest-oriented, emphasizing on the strength and military forces and believing that the moral justice concept of the war serves the practicability and reality of the war; opposing all wars on the whole, the latter may ask for complying with the minimum requirements of humanitarianism in the war; although the latter is idealistic, its ethical appeal may help a just cause enjoy abundant support and a minor or weaker nation defeat a major or stronger nation. Both theories can explain the indiscriminate bombardments by the U.S. and Japanese forces; however, if choosing a theory in a “self-interest” attitude, there will be no in-depth reflection on the damage to both Chinese and Japanese peoples caused by Japanese militarism. It is a pity that nowadays some Japanese right-wing politicians are doing like this.

 

Some Japanese interpret their surrender and defeat in a realistic way, feeling humiliated about their defeat. The extremely powerful atomic bombs dropped on Hiroshima and Nagasaki frightened the Mikado as well as some military commanders and achieved the goal of bombardments—urging the Japanese government to surrender as soon as possible and avoiding more casualties of the U.S. forces. Up to this day, the Japanese right-wing politicians think in a realistic way that the humiliated defeat of Japan is due to the superior military power and technological strength of the U.S. forces over those of the Japanese. Interpreting the bombardment on Chongqing in a realistic way will lead to a horrible conclusion: as the air force of Japan is much stronger than that of China, the indiscriminate bombardment on cities in China aims to achieve psychological effect and force the Chinese nationalist government to surrender by means of military deterrence, namely the killing of countless civilians. In a realistic view, invading China is the goal, killing innocent civilians is the means, and Chinese people are not considered as humans in the Japanese War of Aggression against China. 

 

Some others discuss the atomic bombings of Hiroshima and Nagasaki in a pacifist view, considering themselves as the victims of war as well as the peace makers. By establishing Peace Memorial Parks in Nagasaki and Hiroshima in 1955 and 1958 respectively to pray for eternal peace, and holding memorial activities annually in the two cities on August 6 and 9 respectively and occasionally in such places as the United States since the 1950s, families of atomic bombing victims and nuclear radiation victims are constantly demonstrating their sufferings to the world; in the meantime, the two cities are committed to the opposition and prohibition of nuclear weapons on a long-term basis. People in the two cities are indeed the victims of the war as the right to life of 300 thousand were taken away by the atomic bombs. Discussing the atomic bombing suffered by Hiroshima and Nagasaki in the pacifist theory, Japan is the victim of World War II as well as a peace maker after the war; interpreting the defeat and comforting themselves in the realistic theory, the Tokyo Trial is just the judgment of winners on losers. This is the ideological origin for the Japanese government and some of its nationals having not yet taken in-depth reflection on the crime committed by Japanese militarism.

 

The contemporary protection mechanism on human rights has experienced a process from weak to strong, which is also a process of the opposition between human rights and human rights abuse. In 1945 when the Universal Declaration of Human Rights had not been drafted yet, although the right to life had been proclaimed in Declaration of the Rights of Man and of the Citizen of France and the Declaration of Independence of the U.S., the anti-fascist allies could only respond violence with violence and sacrifice the lives of the minority to save that of the majority when countless lives had been or were deprived by fascistic militarism during the war. Responding violence with violence may cause damage to the innocent while the lesser of two losses shall be adopted in balancing priorities, which is the logic and reality of human rights protection during wartime.

 

 

Such acts as the indiscriminate bombardment causing damage on the innocent during World War II have been stipulated early in all kinds of international customary laws; however, the customary laws at that time are with moral force instead of legal binding, therefore there is no any institution competent to implement and supervise customary laws.

 

Article 25 of the Convention respecting the Laws and Customs of War on Land signed at the Hague, the Netherlands, in December 1907 stipulates: “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.” Article 26 of the Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare drafted and approved by the Commission of Jurists composed of representatives of the United States, France, Great Britain, Italy, Japan and the Netherlands in 1922 states: “Any air bombardment for the purpose of terrorizing the civil population or destroying or damaging private property without military character or injuring non-combatants, is forbidden.” Article 2 of the Kellogg-Briand Pact signed by 62 nations including Germany, Japan and Italy in 1928 prescribes: “The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.” ¹ The Draft Treaty of Mutual Assistance proposed by the League of Nations in 1923 declares that “aggressive war is an international crime.” The Covenant of the League of Nations adopted by the League of Nations Assembly attended by more than 50 nations including Germany, Japan and Italy in February 1924 is “convinced that aggressive war shall never be a means for the settlement of international disputes, therefore it is an international crime.” The above-mentioned regulations can be considered as customary laws, which are participated in or signed by both Japan and the United States. 

 

The world will be cruel and dreadful if there is no legal or moral binding. So far only intergovernmental organizations are able and suitable to implement and supervise customary laws and the League of Nations is the only one that can undertake the responsibility of doing so during World War II. However, the League of Nations, a loosely organized institution established in 1920 and dismissed in 1946, is incapable of supervising the contracting parties to abide by these customary laws. As a result, the 7-year indiscriminate bombardment conducted by the Japanese air force on China and the same medicine of Japan’s own given by the U.S. forces afterwards took uncounted lives away. 

 

The Nuremburg Trials of 1946 made amend and put Nazis on trial of the justice while the Tokyo Trials did not remove the source of the problem. Before 1945, the dominated legal positivism believes that only the existing statutory laws, procedures and conventions recognized by the state are valid, therefore the attorney for Nazi Germany states that although thousands of people were killed by the German forces or died in gas chambers of concentration camps, it does not violate the constitution and laws of Nazi Germany. However, the judges at the Nuremberg Tribunal were convinced arbitrary slaughter, genocide as well as enslaving, abusing or banishing civilians, even if it is at wartime, violated the fundamental moral principles of human beings, which also be contained in the natural law. The chief prosecutor Justice Robert Jackson said in the opening statement for the prosecution: “It is a great responsibility for us to guide the ideas of the world with our faith to the laws for consolidation and reinforcement of international acts so as to make those who control the governmental power and people’s fate resort to war less frequently.”² Sheldon Kruger, a renowned criminal jurist at Harvard University also stated that “whereas some nations in the world follow the policy of deliberate disregard of the law and invent the so-called ‘general war’ whereby attempting to achieve the plan of enslaving the world; on this occasion, the reality forces us to change those maladaptive legal concepts and principles.”³ Consequently, the tribunal confirmed crime against peace, war crime, crime against humanity and conspiracy crime committed separately by Nazi defendants, 11 of whom were sentenced to death including Hermann G?ring. On the other side, although the Tokyo Trials confirmed the same crimes committed by Japanese war criminals, crime against humanity was not considered as the main charge as the indiscriminate bombardment was ignored and Tenno who supported the war was not punished as he deserved. 

 

The Tokyo Trials did not give Japan a profound lesson while the Nuremberg Trials made German take in-depth reflection on their crimes. On December 7, 1970, impelled by human conscience, then German Chancellor Willy Brandt knelt down before the Warsaw Jewish martyrs monument; on the same day 40 years later, German President Christian Wulff came to the monument again to lay wreaths of flowers. The incomplete Tokyo Trials left behind some surviving supporters of Japanese militarism who believe that European nations and the United States, the dominant powers of the Tokyo Trials, were also filthy: “The United States dropped atomic bomb and the Soviet Union scrapped the Japan-USSR Neutrality Treaty and they were not condemned, isn’t it ‘winner takes all’?”⁴ Up to this day, some Japanese still don’t know what their forefathers did wrong.

 

 

On July 26, 1945, the Potsdam Declaration Proclamation Defining Terms for Japanese Surrender states: “The Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established;” and, “the Japanese Government is obligated to establish freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights.”⁵

 

In 1946, forced by the allied headquarters of the United States—the winner of World War II which was occuping Japan, the Japanese government formulated the new Constitution of Japan, which is “democratic reform promoted by the Bureau of Civil Affairs depending on the almighty occupation right, …and democratization relying on dictatorial power.” ⁶ The new constitution states in its preamble: “We believe that no nation is responsible to itself alone, but that laws of political morality are universal.” ⁷ Based on natural laws, the constitution recognizes human rights standards as universal, including equality before the law as well as the enjoyment of freedom of thought, of religion, of speech, of association, of assembly, of demonstration, of migration, academic freedom and fairness of judicial procedure; in the meantime, the new constitution oversteps the boundary set by Article 73 of Meiji Constitution that the proposal right to revise the constitution is exclusive to Tenno, denying the emperor’s sovereignty and any “legal reservation.”

 

The Constitution of Japan attaches great importance to human rights protection and Japan also did a lot of good deeds for Chinese and Asian people after the war; however, in recent years some Japanese seemingly forgot the reason for the formulation of new constitution demanded by the United States, the trauma brought by indiscriminate bombardments on Chinese people as well as 300 thousand casualties in Hiroshima and Nagasaki. It is necessary to recall the history as the 70th anniversary of the Anti-Japanese War approaches.

 

* LI Erping (黎尔平)，professor at the Kunming University of Science and Technology.

 

1.[DDR] P.A. Steiniger eds., translated by Wang Zhaoren et al., Nuremberg Trials (Volume 1), Beijing: the Commercial Press, 1985, at 185.

 

2.Ibid., at 15.

 

3.Ibid., at 15-16.

 

4.Yasuaki Onuma, Tokyo Trials, War Responsibility, Post-war Responsibility, Social Sciences Academic Press, at 16.

 

5.[Japan] Toshiyoshi Miyazawa, emendated by Nobuyoshi Ashibe and translated by Dong Fanyu, General Materials on the Constitution of Japan, China Democracy and Law Press, 1990, at 4.

 

6.[Japan] Junnosuke Masumi, translated by Dong Guoliang, A History of Japanese Political Parties (Volume 4), Beijing: the Commercial Press, 1997, at 841.

 

7.[Japan]Toshiyoshi Miyazawa, emendated by Nobuyoshi Ashibe and translated by Dong Fanyu, General Materials on the Constitution of Japan, China Democracy and Law Press, 1990, at 25.