Ena Nielsen is a first year medical student at the Keck School of Medicine. While an undergrad at USC she was a history major who also took many, many biology courses. She hopes to one day practice medicine in some sort of pediatric specialty, but for know she does research in pain management at CHLA and studies the basics. In her free time, Ena can be found running, mountain biking, surfing (badly), doing yoga, and doing ridiculous things with her friends.
The following is an except from Ena’s article. For the full article, please contact Scribe at scribe.usc.edu.
In 1899, a meeting was convened to discuss international matters concerning the proper conduct of war. Until the Geneva Convention of 1949 these Hague Regulations were the most comprehensive recording of war standards ratified by major powers. World War II brought up many issues of legality under the terms of The Hague, especially with the United States Army Air Force (USAAF) bombing of Japan. Analysis of US actions in Japan reveals discrepancies with the regulations, but the issue of war crimes is more ambiguous. For such a weighty charge, and for such a high profile “trial,” the highest standard for the burden of proof in jurisprudence must be used. That is, in order for the United States to be convicted of war crimes, an international criminal court would have to prove “beyond reasonable doubt” that its actions violated the terms of the Hague Regulations. However, broad ideas like “the necessities of war” and “superfluous injury,” and the use of new aeronautics technology in total war create enough uncertainty that the burden of proof cannot be met for the war as a whole, although specific instances are blatantly in violation.
The Hague Convention was among the first attempts to create a binding international agreement about the laws and regulations of warfare, from naval blockades to bombardment by balloon. Due to its topic of discussion, many leaders were wary about committing their nations to a policy that would restrict their military power. An analysis of who attended the convention and why reveals ulterior motives and indirectly speaks to both the effectiveness of the convention and the concerns each state had in terms of its military power. Such factors come into play when considering how the regulations were supposed to be used during actual warfare. In order to understand what the Hague Convention meant for the world, we must first be comprehend why it was convened. Tsar Nicholas of Russia called the meeting with the diplomatic design of “seeking the most efficacious means for assuring to all peoples the blessing of real and lasting peace, and, above all, in order to put a stop to the progressive development of the present armaments.”1 However, the delegates he invited to the Convention were more cynical in their assessment of his motivation. The general consensus was that Russia, striving to modernize its industries and communication at that time, was “feeling the costs of armaments more painfully than…its principle enemies.”2 In essence, it was an opportunity to level the playing field by hindering the Great Powers rather than to ensure lasting peace. Based on those who were invited, this seemed to be the case. If the laws were meant to create an environment of peace for the entire globe, as the delegates claimed, then lesser nations should have been invited. However, “there was no point in any state’s participation if it wasn’t some sort of a ‘power,’ with the proper attributes of such: sovereignty…armed forces…respect for what was known as the ‘standard of civilization.’”3 Presumably, it was these “standards of civilization” that were the ruling influences during the meetings.
Ulterior motives dictated every move of the delegates. Part of the problem was the attention the Convention received. As today, “the transaction of international business could be warped by the domestic problems of governments.”4 A New York Times article about the ratification of the Hague Regulations in the United States shows that U.S. delegates still remained concerned about isolationism even in the face of international arbitration discussions. They quoted the Secretary of State: “nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not…entangling itself in the political questions…of any foreign States.”5 How they presumed to remain out of international politics while attending an international convention that, by its very nature, was dealing with political matters is a mystery. Even more telling is the Secretary’s assertion that the Regulations would not “imply a relinquishment by the United States of America of its traditional attitude toward purely American questions.”6 If it came down to it, the U.S would disregard the Regulations in favor of traditional self interest. This is perhaps why Edouard Herriot, a French delegate to the Geneva Peace Conference in 1932, felt that “‘to disarm’ is an irregular verb with no first person singular and only a future tense.”7
It is the actual articles of the Hague Regulations that constitute the majority of discussion about USAAF actions. Article 23, Section b expressly denies the right of signatories “to kill or wound treacherously individuals belonging to the hostile nation.”8 The phrase “treacherous” is a translation of the original French word, trahison, meaning “action de trahir,” or an act of betrayal or deception.9 During wartime, the banning of “deception” seems a curious one, for a hostile nation is unlikely to warn the opposing army of their war plans ahead of time. However, this law expressly limits, not acts of war, but the actual means of killing or wounding. In that light, the unpredictable nature of firebombs used by the USAAF fulfills the definition of “treacherous” as outlined by the law. The traditions of war, older even than the Hague Regulations, follow the concept of jus in bello, or proportionate conduct in war. Significant to the discussion of the USAAF air raids is the fact that “a practice widely condemned as violating the concept of jus in bello [is]…the deliberate targeting of civilians.”10 While it is not a binding international law, disregarding a widely accepted rule of warfare goes a long way toward treachery in terms of trustworthiness and reliability.
More compelling, however, is the nature of the weapons used to target civilians. Some may argue that fire does not fulfill the spirit of a treacherous weapon because it is common enough that even the smallest child knows to avoid it. In fact, fire was used for this very reason. Commander McGovern claimed, “‘the panic side of the Japanese is amazing.’ And fire could rouse this panic, as it was ‘one of the great things they are terrified at from childhood.’”11 Even if Napalm loaded M-47 bombs had rained down traditional fire, the use of terror tactics and the deliberate rousing of panic was a deceptive enough tactic to violate the regulation.
However, there was nothing traditional about the firestorms caused by the incendiaries. Intense large-area fires have been known to create unusual drafts, with winds approaching hurricane velocities. Air temperatures in and near these huge fires may exceed the temperature of spontaneous ignition for most burnables. The rising column of hot air, smoke, ash, and combustion gases form a large urban fire…behave differently from that of a single house fire.12
For the people of Japan, this meant that those who were not killed instantly in the bomb blasts “spontaneously combusted, died inhaling heated air, or were trampled to death in the panic.”13 There was little to nothing the cities could do to prepare. Napalm bombs and their ensuing storm of deadly hazards defied defense tactics. Firebreaks were built, but were “of little value if fires start[ed] on both sides of them or large numbers of wind-borne burning firebrands [were] carried across them.”14 Immediate injuries are not the only things that need to be considered under the definition of treachery. In a more traditional assault, buildings and resources are left in the aftermath to help the wounded rebuild. That was not the case in the Japanese cities. “In general, fires tend to burn out the entire center of the area around ground zero and create at least some probability of damage out to many miles.”15 In Tokyo there was “nothing standing, and not even any bomb craters or piles of wreckage;” it was simply “flat, the whole city has gone up in smoke.”16 The combination of unpredictable hazards and a lack of recovery resources devastated the mainland to an unprecedented degree.
Going hand in hand with treacherous killing is the section of the Regulations concerning excessive injury. Article 23, Section e states “it is especially prohibited…to employ arms, projectiles, or material of a nature to cause superfluous injury.”17 As before, the word “superfluous” requires clarification in order to accurately determine whether or not it applies. The traditional connotation is “exceeding what is sufficient.” Again, this law applies strictly to injury rather than the act of war in general. A comparison of the injuries caused by firebombing and those caused by “normal” explosive bombs indeed reveals an excess of injury, sometimes enough to cause death several times over. Superfluous injuries are most often caused by superfluous force. On the March 9 raid over Tokyo, “2,000 tons of incendiaries were dropped…marker bombers started fires with M-47 Napalm-filled bombs…the main load” was “500-pound clusters of delayed-fuse, M-69 Napalm bombs.”18 Napalm was specifically designed to burn at high temperatures and continue to burn despite traditional fire-fighting methods. Cluster bombs, especially those with a delayed fuse, were meant to continue to detonate long after the air raid had ended. The direct results of this combination were gruesome. “People…spontaneously combusted, died inhaling heated air, or were trampled to death in the panic. Many of those who found cover in shelters and canals…were baked, drowned, and boiled.”19 The woefully inadequate bomb shelters were themselves turned into traps due to “waves of oxygen-destroying flame, carbon monoxide, panic-born stampede, or a combination of them all.”20 Traditional bombs explode once, causing devastating but largely contained damage. The bombs used in the bombing campaigning over Japan were, according to Winston Churchill, “simply for the sake of increasing the terror, though under other pretexts.”21 And the raids were terrifying. That single bombing of Tokyo caused approximately 100,000 deaths, primarily of non-combatant women, children, and the elderly in a single three-hour period.22
Superfluous injuries are not limited to those who experienced the air raid, but extend to the livelihoods of those who were lucky enough to survive the initial bombings. Destruction of buildings and farmland can cause just as much devastation in the long term as the bombs themselves cause instantly. There was not even a whisper of proportionality in this case.
178 square miles were razed, amounting to 40 percent of the urban area of the 66 cities attacked. Twenty-two million people, 30 percent of Japan’s entire population, were rendered homeless. 2,200,000 civilian casualties were inflicted, including 900,000 fatalities. These more than exceeded Japan’s combat casualties in the Pacific of approximately 780,000.23
The geographical impact of uprooting over a quarter of the nation was enormous. As the population of Japan became more concentrated in the few cities that were as yet un-bombed, the possibility of deadly congestion in the next attack increased. However, staying in the bombed cities was impossible: “the combustible nature of most buildings meant there were not even the ruined skeletons and rubble of a built-up area.”24 The costs of reconstruction and feeding the millions of displaced citizens placed strain on Japan’s already struggling economy. Even if the physical injuries caused by incendiary raids had not been superfluous, the damage to place certainly exceeded anything dictated by jus in bello.
1 Geoffrey Best, “Peace Conferences and the Century of Total War: The 1899 Hague Conference and What Came After.” International Affairs. 75.3 (1999): 621.
3 Ibid, 619.
4 Ibid, 623.
5 “Hague Treaty in the Senate.” The New York Times. December 21, 1899.
7 Best, Geoffrey, “Peace Conferences and the Century of Total War,” 633
8 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. July 29, 1899. Accessed from: http://www.icrc.org/ihl.nsf/FULL/150? OpenDocument
9 Jacques Dendien. “Le Trésor de la Langue Française Informatisé.” Le Trésor de la Langue Française Informatisé. Accessed from: http://atilf.atilf.fr/
10 John Dower, Cultures of War: Pearl Harbor / Hiroshima / 9-11 / Iraq, (New York: W.W. Norton & Company, Inc. 2010), 155
11 William Ralph, “Improvised Destruction: Arnold, LeMay, and the Firebombing of Japan,” War In History, 13.4 (2006): 503.
12 Frederic Solomon, The Medical Implications of Nuclear War. (Washington DC: National Academy Press. 1986), 81
13 Ralph, “Improvised Destruction,” 513.
14 Solomon, The Medical Implications of Nuclear War, 83.
15 Ibid, 86.
16 Dower, Cultures of War, 163
17 Convention (II)
18 Kenneth Hewitt, “Place Annihilation: Area Bombing and the Fate of Urban Places,” Annals of the Association of American Geographers, 73.2 (1983): 273.
19 Ralph, “Improvised Destruction,” 513
20 Masuo Kato, The Lost War: A Japanese Reporter’s Inside Story, (New York: Alfred A. Knopf,1946).
21 Dower, Cultures of War, 174
22 Ralph, “Improvised Destruction,” 513
23 Robert Pape, “Why Japan Surrendered,” International Security, 18.2 (1993): 165.
24 Hewitt, “Place Annihilation,” 267.