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Last Updated: 05/04/2012Record of Our Struggle: Atomic Bombing-Induced Illnesses and Class-Action Lawsuits
Kenji Urata, Vice-President of the International Association Of Lawyers Against Nuclear Arms (IALANA), reviews a recent publication that records the legal struggle of those who have suffered illnesses induced by exposure to atomic weapons. This article is an English translation of the original Japanese, published 2012 in the journal Law and Democracy.
What Is “The Revealed True Nature of Radiation Exposure”?
Elucidating the Message of Class-Action Lawsuits on Atomic Bombing-Induced Illnesses: Record of Our Struggle (Class-Action Lawsuits on Atomic Bombing-Induced Illnesses, Records Publication Committee, ed., Nippon Hyoronsha, December 2011)
This Record of Our Struggle communicates the “the revealed true nature of radiation exposure” to people of present and future generations through the Class-Action Lawsuits on Atomic Bombing-Induced Illnesses, and attempts to “hitch the hibakusha wagon to a lucky star.” If you read the book in this way, it is a treasure trove for carrying over the memory of the atomic bombing experience into the world of the Fukushima nuclear accident, and holding that memory in common.
Class-action lawsuits seeking atomic bomb injury certification. Even though nearly 290,000 people have Atomic Bomb Survivor’s Certificates, the Minister of Health, Labor and Welfare has certified only 2,082 as atomic bomb injury victims. Certified persons have all their healthcare expenses paid by the government, and receive a special healthcare allowance of ¥137,000 every month. For that reason the certification rate is only about 0.73% (as of March 2001). This certification system has continued under the 1957 Medical Treatment for Atomic Bomb Victims Act, the 1968 Law on Special Measures for Atomic Bomb Victims, and the 1994 Atomic Bomb Victims’ Relief Law, which integrated the former two laws. Meanwhile, lawsuits on how certification should be done have established the criteria for determining causation by radiation, the extent of the burden of proof, and the need for medical care. This process started with the Ishida lawsuit and progressed to the Matsuya lawsuit, which led to the Konishi and Azuma lawsuits, and continued on to the Kinki lawsuit. Nevertheless, the Japanese government and the Minister of Health, Labor and Welfare have not abided by these court judgments, citing as reasons the balance with war victims in general and the budget framework. Instead, they have unsparingly and repeatedly turned down certification applications. In response to a recommendation by Mr. Hiroki Bito of the counsel for the Kinki lawsuit that a class-action suit can be brought even in an administrative case seeking rescission of a rejection, 306 victims worked on a lawsuit campaign. For over six years as a part of the atomic bombing victims’ movement, they have demonstrated the insights and strengths of the Japan Confederation of A- & H-Bomb Sufferers, counsels, experts, and supporters.
How should we perceive this court battle? National counsel leader Masanori Ikeda has supported the hibakusha for many years in his capacity as a lawyer, and he makes the following statements: These lawsuits have been victorious in that they made the government revise DS86 and other criteria for determining causation by radiation, but from the standpoint of basic demands by the hibakusha, one finds no change at all in the government’s view (vol. 1, p. 3). Mr. Shuntaro Hida (age 84 at the time of testimony) has, from his experience as a clinical physician, long been exposing the seriousness of internal exposure to low-dose radioactivity. In his words, if nuclear weapons and radioactivity in their entirety are the Yamata no Orochi, then the certification battle now being fought in court is just one of its legs. No matter how much we fight this, we cannot attack the real nuclear evil (vol. 2, p. 537). By “leg” he probably means tail. Nevertheless, this great physician is right on the mark.
But these are atomic bombing trials in which hibakusha challenged the Minister of Health, Labor and Welfare and the government, and they are class-action suits with a connection to Minamata disease trials; if we see them in close association with each other, then the significance of these lawsuits changes. Mr. Masayoshi Naito, leader of the Tokyo counsel, has this to say based on the genealogy of atomic bombing lawsuits: In view of the 1996 ICJ opinion, the atomic bombings were international crimes (vol. 1, p. 258). Additionally, nuclear weapons are inadmissible in view of the ban on indiscriminate attacks and the principle of balance in military effect. Further, the plaintiffs revealed the sustained impact of radiation based on the “true nature of radiation exposure,” and posed a problem which transcends the limitations inherent in the framework of the Atomic Bomb Victims’ Relief Law (vol. 1, pp. 257–258).
Tetsuro Miyahara, secretary-general of the national counsel, minutely analyzed the movement and lawsuits for a period of six years, and gives decisive significance to them. He observes: These were lawsuits for winning certification under the Atomic Bomb Victims’ Relief Law (Articles 10 and 11). Therefore, in the sense that they are part of current law itself, they were dominant. State compensation-backed consideration is shown, and it had become established; there were humanitarian provisions for relief regarding special medical conditions; and further, the very demand for strict scientific substantiation in the requirement for causation by radiation was not consistent with the intent of the law (vol. 1, p. 157). However, the framework of current law also imposed a limitation, and therefore the trials “looked for a non-existent solution from the experiences of previous class-action lawsuits” such as Minamata disease, Hansen’s disease, and hepatitis caused by tainted blood products (p. 160). As Mr. Miyahara was present at all the trials throughout Japan when the decisions were handed down, this enabled him to arrive at these observations.
The petition submitted to Hiroshima District Court by the Hiroshima lawsuit counsel (headed by Takeya Sasaki) included the same general remarks as other lawsuits around the nation. The final preparatory document submitted by the Tokyo lawsuit counsel (headed by Shoji Takamizawa) to Tokyo District Court summarizes the “revealed true nature of radiation exposure.” Mainly in this regard, the validity of the plaintiffs’ position has been corroborated by the experts’ written opinions and other means, and the document is a compilation of the position that the plaintiffs set forth in the trials (vol. 2, pp. 1–169). For lawyers working hard on these trials, this is a must-read section.
Entities involved in the interpretation and application of the provisions of current law have various standpoints. But I shall take special note here that in this case administrative power has assumed an especially stubborn attitude. On May 12, 2006 Osaka District Court handed down a decision canceling the certification rejection for all nine plaintiffs, and the hibakusha asked than an appeal be given up. Nevertheless, the Ministry of Health, Labor and Welfare cruelly refused this, and since then has continued the confrontation in class-action lawsuits. Administrative agencies gave precedence to their own policies and looked down on the judiciary. The administrative position, which is maintained by means of the council system, can be characterized thus: Atomic bombing disasters should be tolerated, and the manufacture, testing, threat, and use of nuclear weapons is permitted for security reasons. This is the domestic and foreign public opinion that administrative power wants to maintain.
This logic and power, which reject the politics of democracy that has shaped such majority opinion, are a product of the hibakusha movement. Therefore if we focus on this point, the words of Mr. Terumi Tanaka (secretary-general of the Japan Confederation of A- & H-Bomb Sufferers) are, I think, a precious treasure: “Struggle changes people,” and “The plaintiff hibakusha were transformed by the trials” (vol. 1, p. 26).
What is the “gift to Fukushima” from the class-action lawsuits for atomic bomb injury certification?
Let’s make an association with the following words. “Through the release of atomic energy, our generation has brought into the world the most revolutionary force since prehistoric man’s discovery of fire. This basic power of the universe cannot be fitted into the outmoded concept of narrow nationalisms. For there is no secret and there is no defense; there is no possibility of control except through the aroused understanding and insistence of the peoples of the world” (Albert Einstein, 1947). Broadening our horizon connects the heavens with life.
This being the nuclear age, I think that we should once again fix our gaze on the forms that appear, and consider ways to survive in this world. If we focus on the events concerning nuclear energy between Japan and the US, we find the signing of the 1955 Agreement for Cooperation Concerning the Civil Use of Atomic Energy between the U.S. and Japan, and the 1968 revision of the agreement. These events occurred under the system of domination by the Japan-US Security Treaty, and they are connected to the events at Hiroshima and Nagasaki.
And now for that “revealed true nature of radiation exposure” that emerged in the class-action lawsuits: (1) Atomic bomb injury is characterized by appearance long after exposure, causes are intertwined in a complex manner, and there is a lack of symptoms that are peculiar to radiation exposure; (2) the only way to find out about the true state of exposure is to observe the daily lives of hibakusha with low-dose internal exposure and listen to what they have to say, instead of using the scientific findings concocted by those in power; and (3) in deciding how to provide compensation, we should see their plight as the infringement of rights under the Constitution’s Article 14 and the second paragraph of the Preamble (the right to live in peace, free from fear and want) (vol. 1, pp. 167–169).
Granted that damage from the Fukushima disaster has a characteristic nature and peculiarities, what we must focus on is the problems in common with the harm suffered by atomic bombing victims.
This book includes a DVD called “Give Us Back Our Humanity.” I hope that this book will be widely read now, and also by succeeding generations.
 This is a translation of a book review, originally written in Japanese, which appeared in the monthly law journal Law and Democracy,466, 2012, pp.82-3, published by the Japan Democratic Lawyer’s Association.
 A giant snake from Japanese mythology, having eight heads and eight tails.
Dr Kenji Urata is Professor emeritus at Waseda University, and vice-president of IALANA.