WWII

In recognition of today’s entry into force of the Treaty on the Prohibition of Nuclear Weapons, with 81 signatories and 51 states parties, I’m republishing the essay below, which I posted at my Gloss site on August 10, 2020.

 

 

 

“There, in the tin factory, in the first moment of the atomic age, a human being was crushed by books.”

I spent yesterday reading, for perhaps the 3d time in my life, “Hiroshima,” the 30,000-word epic published in an August 1946 New Yorker. This time around, it’s the 19-word sentence quoted above that stuck in my mind.

Among this article’s many remarkable facets is the absence of overt commentary. It narrates the first atomic bombing not in the voice of author John Hersey, by then a Pulitzer Prizewinning journalist who’d covered World War II alongside US troops. Instead, Hiroshima is revealed through the eyes of 6 unknowns:

  • Miss Sasaki, a young clerk caught in the rubble at the tin factory where she works;
  • 2 physicians, Dr. Sasaki (no relation), a Red Cross Hospital surgeon who treats the clerk’s mangled leg, and “hedonistic” Dr. Fujii, who runs his own private hospital;
  • Mrs. Nakamura, whose husband, a tailor, had enlisted in the Army and died at Singapore 3 years earlier; and
  • 2 clerics, an Emory-trained Methodist, Reverend Tanimoto, and a Jesuit priest, Father Kleinsorge.

Each was stunned by the bomb’s “Noiseless Flash” at 8:15 a.m. on August 6, 1945, and over the next year, and each managed to eke out a kind of survival.

The article reads like a matter-of-fact recitation of the experiences of these 6. Yet the facts, as marshalled, leave little doubt of Hersey’s point of view: 12 months on, the clerk is “a cripple”; one doctor is “not capable of the work he once could do” and the other has “no prospects of rebuilding.” The pastor has lost his both his church and “his exceptional vitality,” while the misnamed priest (in German, Kleinsorge = “little worry”) is “back in the hospital.” And these are “among the luckiest in Hiroshima.”

The choice of voices is itself a commentary. These are ordinary people. Two are reading newspapers when the bomb drops. They differ from Hersey’s own readers only because all are citizens of Axis countries, of vanquished Japan and Germany. “Hiroshima” humanizes them, and so upends the Allies’ postwar mindset.

Hersey reports that on the 1st anniversary of the bombing, many, though not all, in Hiroshima “feel a hatred for Americans which nothing could possibly erase.” Hypocrisy surfaces, too, for US-led proceedings before the International Military Tribunal for the Far East already were well under way:

“I see,” Dr. Sasaki once said, “that they are holding a trial for war criminals in Tokyo just now. I think they ought to try the men who decided to use the bomb and they should hang them all.”

Within that sentence, of course, lies a central conundrum of international criminal law – a sin of omission that dogs international criminal justice to this day.

Yesterday marked the 75th anniversary not of Hiroshima, but rather the atomic bombing 2 days later of Nagasaki. Together these conflagrations forced the surrender to Japan and ended a war begun with another bombing, that of Pearl Harbor, on a date that Truman’s predecessor declared would “live in infamy.”

In victory, Allies worked to mute misgivings about their own bombing raids – carpet bombing of cities in Europe and Asia, as well as the Hiroshima-Nagasaki nuclear moment. But misgivings existed, as my own research on participants at the Nuremberg trials has revealed. Sometimes they surfaced in commentaries and in longer writings by Hersey and others. Yet questioning has remained sporadic, and much more needs to be done.

On this anniversary, what I find myself pondering the sentence quoted at top: “There, in the tin factory, in the first moment of the atomic age, a human being was crushed by books.” At a site where workers produced (no doubt for war matériel) a metal that humans first had forged in the Bronze Age, the centuries-old storehouse of human knowledge revealed itself quite literally to be a weapon of the Nuclear Era.

Would that so much human effort were applied to the ends of peace.

What an honor to present my work in progress, “Intersectional Sovereignties: Dr. Aline Chalufour, Woman at Nuremberg – and at Paris, Ottawa, and Dalat” last week in “Global History and International Law”, a months-long seminar under way online.

Organizer of this superb scholarly offering is Dr. Anne-Sophie Schoepfel of the Institut d’études politiques de Paris, better known as SciencesPo. Her affiliation struck me as serendipitous, given that the subject of my paper was a graduate of SciencesPo. Born in 1899, Chalufour was also the 6th woman ever to earn a Ph.D. in international law from the University of Paris. In 1945-1946, she was the only woman lawyer on the French team that joined U.S., British, and Soviet allies in prosecuting vanquished Nazi leaders at Nuremberg.

Chalufour is one of the women on whom I’m focusing in my book-length study of women’s roles at that first Nuremberg trial, before the International Military Tribunal. But the richness of her experiences inspired this separate article.

Among the other highlights in Chalufour’s 90-year life: practice before the Paris Bar; activism in national and international feminist groups; teaching at colonial schools in what’s now Vietnam; serving de Gaulle’s Fighting French as a propagandist in Canada; gathering evidence about war crimes from liberated ex-detainees; taking part as the only French prosecutor in Britain’s first trial on Ravensbrück, a Nazi concentration camp for women; and, starting a few years after Nuremberg, service as a national judge.

My paper considers these episodes in light of of 3 theorizations: 1st, the shared sovereignty of the post-World War periods; 2d, sovereignty dynamics in colonial and imperial sites; and 3d, sovereignties of the person, imagined and corporeal. The paper then examines interrelations among these 3.

Serving as my discussant at last Wednesday’s session was Dr. George Giannakopoulos of King’s College London and NYU London. Numerous other participants offered valuable comments.

This was the 5th session in the seminar, which is slated to run through June 24 and has attracted law and history scholars from Asia and Latin America as well as Europe and North America. Next up, at 3 pm EDT this Wednesday, May 20, are 2 papers within the umbrella theme “Imperial Origins of the World Order”; details here.

What’s more, in due course Dr. Schoepfel and her SciencesPo colleagues are posting edited podcasts of each session. (Update: My own presentation is available at the seminar website and on YouTube.)

Already available at the seminar’s website and its YouTube channel:

  • “Epistemic Communities in Exile: Coining ‘Crimes against Humanity’ at London, 1940-45” by Dr. Kerstin von Lingen of the University of Vienna, Austria and author of a new journal article on this subject, as well as ‘Crimes against Humanity’. Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864-1945 (Paderborn 2018), a monograph soon to be available in English. Discussants were Dr. Barak Kushner of the University of Cambridge, England, and Dr. Sabina Ferhadbegović of Imre Kertész Kolleg Jena, Germany.
  • “Genocide in Historical Perspective. The Language of Trangression” by Dr. Dirk Moses, of the University of Sydney, Australia, and author of The Problems of Genocide. Permanent Security and the Language of Transgression (forthcoming Cambridge University Press). Discussant was Dr. Charles Maier of Harvard University.
  • “The Nuremberg Moment. International Trial, American Lawyers and the Racial Question” by Dr. Guillaume Mouralis of Centre Marc Bloch in Berlin, and author of Le Moment Nuremberg. Le procès international, les lawyers et la question raciale (Presses de Sciences Po 2019). Discussant was Dr. Elizabeth Borgwardt of Washington University in St. Louis.

The full list of seminar participants is here; full schedule and registration information, here.

Executive Branch Lawyering course, from left: Maria Eliot, Wade Herring, Professor Diane Marie Amann, Sarah Mirza, Hanna Karimipour, Jennifer Cotton, Taylor Samuels, Judge David J. Barron, Morgan Pollard, Keelin Cronin, Joe Stuhrenberg

Who decides how America wages war?

What does “commander in chief” mean?

What (national or international) laws govern the United States’ waging of war?

How and by whom are those law identified, interpreted, decided, and implemented?

Those questions and many more arose during the Executive Branch Lawyering course that I just had the honor of co-teaching with David J. Barron, Judge of the U.S. Court of Appeals for the 1st Circuit and also The Honorable S. William Green Visiting Professor of Public Law at Harvard Law School, where he had taught full-time before his 2014 appointment to the federal bench.

My own association with Barron – like me, a former law clerk to U.S. Supreme Court Justice John Paul Stevens – dates to 2008. That year, Barron and I were among the charter contributors to “Convictions,” a legal blog published for a time at Slate. And in 2017 Judge Barron began serving on the Judicial Advisory Board of the American Society of International Law, with which I am affiliated thanks to my editorship of ASIL’s Benchbook on International Law (2014).

For an 18-month period between those years, Barron served as Assistant Attorney General in charge of the Office of Legal Counsel, providing legal advice to then-President Barack Obama and to agencies in the Executive Branch. That experience formed the basis of the 1-credit course that he and I co-taught last week at my home institution, the University of Georgia School of Law.

Our texts included Barron’s 2016 book, Waging War: The Clash Between Presidents and Congress, 1776 to ISIS, as well as The Terror Presidency: Law and Judgment Inside the Bush Administration, a 2009 memoir by Harvard Law Professor Jack Goldsmith, who had led OLC from 2003 to 2004 – plus executive orders, congressional enactments, judicial decisions, and other primary materials.

To prepare for sessions with Judge Barron, a topnotch group of 9 Georgia Law students and I examined a selection of historical moments when Presidents’ war-waging generated tensions, with other branches of government established in the U.S. Constitution and with other stakeholders. Of particular concern were instances related to executive detention in time of war, for example: treatment of British officers held during the American Revolution; General Andrew Jackson’s jailing of a judge who issued a writ of habeas corpus during the 1814 military occupation of New Orleans; and 2 capital military trials, the 1st of an Indiana civilian in the Civil War and the 2d of Nazi saboteurs in World War II.

Sessions with Judge Barron concerned US executive detention and related issues since the terrorist attack of September 11, 2001. The focus was on OLC’s legal, ethical, and practical duties in advising on such policies – and, through careful and extensive role-playing, on how Executive Branch lawyers go about the day-to-day work of giving such advice.

A most valued, and rewarding, teaching experience.