Certification of Sufferers of Atomic Bomb-Related Diseases victorious lawsuits force government to review criteria Nuke Info Tokyo No. 131

1. Victories in Court

On May 28, 2009, in the 18th consecutive victory for the hibakusha (atomic bomb survivors), the Tokyo High Court recognized nine more plaintiffs as sufferers of atomic bomb-related diseases (hereafter referred to as “a-bomb disease sufferers”). Since spring 2003, group lawsuits have been filed by 306 hibakusha with 17 district courts around the country. The plaintiffs are seeking the revocation of decisions rejecting their applications for recognition as a-bomb disease sufferers. As at the end of June, there were still 21 outstanding cases before district courts, high courts, or the Supreme Court.

Victory! 18 in a row! Supporters outside the Tokyo High Court

On June 9 the government announced that it would not appeal the Tokyo High Court’s verdict. Later it said that it aims to resolve the outstanding court cases by August this year, in time for the 64th anniversary of the 1945 atomic bombings. It is also conducting a review of the criteria by which a-bomb disease sufferers are certified.

The atomic bombs flattened the cities of Hiroshima and Nagasaki on August 6 and 9 respectively, killing 140,000 people in Hiroshima and 70,000 people in Nagasaki by the end of 1945. But the suffering of the survivors did not end there. To this day they continue to suffer from all kinds of radiation-related diseases. However, for a range of reasons, the government has been very reluctant to acknowledge this reality. Its position has been that atomic bomb-related diseases afflict only a small fraction of the survivors. Before the guidelines were revised in April 2008, it had recognized only 2,200 of over 250,000 card-carrying hibakusha as a-bomb disease sufferers.

The hibakusha launched their group lawsuits because they wanted to expose the true extent of the terrible effects of the atomic bombs before they died. They also wanted to force the government to drastically overhaul its certification system by replacing the “probability-of-causation” formula, which had been mechanically applied regardless of the circumstances, with new criteria that reflect the true extent of their radiation exposure and suffering. They also saw their lawsuits as a first step towards changing the government’s nuclear-dependent security policy, which is facilitated by its deliberate under-estimation of the health effects of the atomic bombings.

2. Certification system

2.1 Two classes of hibakusha
Certification of hibakusha falls into two categories: 1) people who are recognized as hibakusha, and 2) hibakusha who are also recognized as a-bomb disease sufferers. According to the latest official figures, there are now just over 240,000 surviving hibakusha recognized under the first category. Since the new certification system was introduced in April 2008, the number of hibakusha in the second category has risen dramatically, but there are still only about 5,000 people certified as a-bomb disease sufferers.

2.2 Certification as a hibakusha
The system for certifying people as hibakusha first came into effect in 1957, the year after the Japan Confederation of A- and H-Bomb Sufferers Organizations (Hidankyo) was founded. Local governments issue health certificates to hibakusha based on criteria laid down by the national government. Medical expenses above the amount covered by the national insurance system are covered by the government and certain additional medical allowances are also available.

Hibakusha health certificates may be awarded to people in one of the following categories:
1) people who were in designated areas in the vicinity of ground zero at the time of the explosions;
2) people who entered within 2 kilometers within two weeks of the blast;
3) other people who were recognized as having been affected by radiation (eg people who helped the sick and wounded and people in the path of the radioactive fallout);
4) people in one of the above criteria who were in utero at the time.

The question of whether or not these categories are comprehensive enough is debatable, but in practice the system did not capture all the hibakusha. Factors such as fear of discrimination meant that many hibakusha were reluctant to register at first and those who applied later often found it difficult to prove that they fulfilled the criteria. Hence the total number of people exposed to radiation from the atomic bombs will never be known.

2.3 Certification as an a-bomb disease sufferer
The system for certifying a-bomb disease sufferers was first established in 1957, at the same time as the system for certifying hibakusha. The Ministry of Health, Labor and Welfare decides whether applicants should be recognized as a-bomb disease sufferers on the basis of opinions of an expert subcommittee of the ministry’s certification panel. In addition to the benefits available to holders of hibakusha health certificates, people recognized as a-bomb disease sufferers are entitled to a monthly health allowance of 137,000 yen.

Certification as an a-bomb disease sufferer is restricted to holders of hibakusha health certificates who suffer from a limited number of recognized radiation-related conditions. Under the initial criteria, besides suffering from a recognized disease, applicants also had to have been exposed within 2 kilometers of ground zero. However, as time went by, the government became stricter in its application of the criteria, specifying shorter distances from ground zero depending on the disease.

In July 2000 the Supreme Court accepted Hideko Matsuya’s claim for recognition as an a-bomb disease sufferer. It was hoped that the Ministry of Health, Labor and Welfare would relax its criteria, but if anything the ministry became even more stingy. Under revised guidelines issued in May 2001 the ministry proceeded to rigidly apply its “probability-of-causation” formula. This formula was based on analysis of radiation data collected from US nuclear tests and and epidemiological studies of the hibakusha. It relates inferred radiation dose to specific diseases.

The group lawsuits begun in spring 2003 were launched because hibakusha realized they would get no satisfaction from the government unless they challenged it in the courts. After numerous victories, they finally forced the government to amend the guidelines. The new guidelines came into effect in April 2008.

2.4 Failure to consider the hibakusha’s true circumstances
As time elapsed after the original exposure and acute symptoms subsided, hibakusha found that they continued to suffer from vague symptoms such as fatigue, headache, a susceptibility to catch colds, and so on. These came to be collectively referred to as “bura-bura disease”. They reflected some kind of physical change caused by exposure to radiation from the atomic bombs. The government’s certification system failed to take these conditions into account.

Besides failing to recognize the true nature of the health problems faced by the hibakusha, the government also assessed their radiation exposure in a very restrictive fashion. The government’s “probability-of-causation” formula focused on direct radiation exposure from the explosion itself. The Ministry of Health, Labor and Welfare deliberately underestimated residual radiation and internal radiation exposure, even though it was well known that people continued to be exposed to radioactive fallout and induced radioactivity long after the atomic bombs exploded. People who entered the cities after the explosion suffered from symptoms of acute radiation, so it should have been obvious that they would also develop chronic symptoms.

Objecting to the government’s narrow interpretation, the plaintiffs asserted that physical changes caused by their exposure to radiation were the underlying cause of a whole range of a-bomb diseases. Successive court verdicts accepted the plaintiffs’ arguments. The courts criticized the government’s application of its “probability-of-causation” formula as too mechanical and placed importance on a comprehensive assessment of each hibakusha’s circumstances and health condition.

2.5 New standards
After a series of court decisions went against the government, former Prime Minister Shinzo Abe met with hibakusha on August 5, 2007, the day before the Hiroshima Day anniversary. He agreed that the criteria for recognizing a-bomb disease sufferers should be reviewed. As a result of this review, the criteria were changed and new standards came into effect in April 2008.

Under the new standards the government recognizes certified hibakusha with any of the following five medical conditions as a-bomb disease sufferers: malignant tumors, leukemia, hyperparathyroidism, cataracts, and myocardial infarction. The latter two are only recognized where it is accepted that they were caused by radiation.

The radiation exposure criteria were also relaxed as follows:
1) people who were exposed within a radius of 3.5 kilometers from ground zero at the time of the bombing;
2) people who entered within 2 kilometers of ground zero within 100 hours of the bombing;
3) people who spent a week or more within 2 kilometers of ground zero between 100 hours and 2 weeks after the bombing.

Where it is assessed that under the old formula the “probability-of-causation” is 10% or more, it is no longer necessary to refer the case for review by the expert subcommittee. For other cases, where the person is suffering from one of the recognized conditions and the circumstances of their radiation exposure meet the above criteria, the expert subcommittee reviews the case. People who do not meet the above criteria can seek certification based on a comprehensive assessment of their individual circumstances and conditions.

2.6 Limitations of new standards
The new standards are a great improvement on the old standards. Under the eased criteria, 2,969 people were certified in the 2008 fiscal year, about 23 times more than the 128 people recognized in the 2007 fiscal year. However problems remain.

In the first place, the list of recognized diseases is still too restrictive. The courts have recognized additional non-cancer conditions. In and after March 2009, a ruling each by the Hiroshima and Kochi district courts and the Osaka High Court, and two rulings by the Tokyo High Court said that liver dysfunction and hypothyroidism should be regarded as certifiable conditions. The courts have also recognized cancers for people who were exposed at greater distances from ground zero and who entered the contaminated areas later.

Under great pressure from the court decisions, the government is expected to expand the list of recognized conditions as an outcome of the current review. On June 22, 2009 a panel of experts under the Ministry of Health, Labor and Welfare said it would add liver dysfunction (chronic hepatitis and liver cirrhosis) and hypothyroidism to its list of recognized diseases. Unfortunately, the ministry’s certification panel includes many members who still support the old “mechanical” formula. Even as they relax the criteria, they cast doubt on the scientific basis for doing so. They are also seem determined to retain the right to judge whether or not the condition was caused by radiation exposure.

2.7 Hibakusha demands
Hidankyo, the peak national body representing hibakusha, maintains that applications by hibakusha health certificate holders should be approved for all types of cancer. It takes the position that applications related to cataracts and myocardial infarction should be approved unless it can be proved that they were not caused by radiation. In general, the benefit of the doubt should be given to the hibakusha.

The best way around the current impasse would be for the government to amend the law and issue ordinances determining which diseases are recognized, so that all hibakusha who suffer from these conditions are certified automatically. This is what the plaintiffs and Hidankyo are calling for, but it requires a political decision at the highest level.

3.1 Unprocessed applications
Despite the victories in court, it must not be forgotten that the applications for recognition as a-bomb disease sufferers of about 7,800 hibakusha have not even been processed yet. Over three years have elapsed since some of these applications were lodged. Given the age of the applicants and the manifest unreasonableness of the government’s certification system, there can be no excuse for further delays.

3.2 Overseas hibakusha
There have been several lawsuits by hibakusha living overseas who are demanding official recognition as hibakusha and associated benefits. In November 2007, in a landmark ruling, the Supreme Court declared that administrative guidance issued in 1974 by the then Ministry of Health and Welfare to local governments was illegal. The administrative guidance in question limited benefits to atomic-bomb survivors who were living in Japan and to visiting atomic-bomb survivors for the duration of their stay in Japan. Even after the Supreme Court ruling, overseas hibakusha were still inconvenienced by a requirement that they must visit Japan to apply for recognition, but a December 2008 revision of the law relaxed that condition, enabling survivors living abroad to apply without visiting Japan. Since then, hibakusha health certificates have been issued to people living overseas, including to people living in South Korea, Taiwan, the United States and Holland.

It is also possible for people living overseas to obtain recognition as a-bomb disease sufferers, but, in another example of bureaucratic bloody-mindedness, applicants for this class of certification still have to visit Japan to apply.

4. Personal courage and political support

In order to achieve the successes that they have, the plaintiffs had to lay bare their private lives by declaring their medical histories and their suffering before the courts. But courage alone was not sufficient. They also had to win broad political support to counter strong resistance from the bureaucracy. Since launching their group lawsuits, they have succeeding in garnering support within all the major political parties, including the governing parties.

With so much political support, one might wonder why it took so long and so many court victories for them to make substantial progress. The truth is that the hibakusha’s struggle for recognition is an indictment of the stubbornness and inertia of Japanese government and bureaucracy. It also illustrates the penny-pinching callousness of the government and bureaucracy towards the needs of ordinary citizens. Considering the time it has taken for the government to show some flexibility in its certification system, it seems that the official attitude has been to wait for the hibakusha to die.

5. Certification of a-bomb disease sufferers and nuclear disarmament

5.1 Nuclear security and nuclear energy policies
Through their struggle for recognition, many hibakusha have come to believe that one of the main reasons behind the Japanese government’s stubborn resistance is its addiction to nuclear weapons. They believe the government wants to downplay the long-term effects of radiation from the atomic bombing of Hiroshima and Nagasaki, because if it acknowledged the true extent of their ongoing suffering the rationale for a security policy which relies on the US nuclear umbrella would collapse. Likewise, if the full health effects of radiation exposure were admitted, there would be strong resistance to the government’s promotion of nuclear energy.

5.2 Research compromised by military motives
From the beginning, research into the radiological impact of the atomic bombs was compromised by military priorities. The US established the Atomic Bomb Casualty Commission (ABCC) in 1947 to carry out a long-term epidemiological and genetic study of the effect of the atomic bombs on the survivors. However, ABCC was established for military purposes. Its object was to investigate the killing power of the radiation from the original blast of the atomic bombs, not to consider the suffering of the victims. It concealed the residual radioactive contamination of Hiroshima and Nagasaki and made no effort to provide medical treatment for the survivors, treating them instead as research guinea pigs.

ABCC was replaced in 1975 by the Radiation Effects Research Foundation (RERF), which was jointly funded and managed by the US and Japan. Like ABCC, RERF focused on radiation exposure from the original blast. It drew statistical correlations between artificially derived assessments of radiation dose and effects on individual organs, rather than looking at the impact on the total person.

The data collected by ABCC and RERF formed the basis of the infamous “probability-of-causation” formula and thus of the a-bomb disease sufferers certification system.¹ By exposing the defects of the research carried out by these two organizations, the group lawsuits challenge government policies which depend on denying or minimizing the long-term effects of radiation – specifically, the government’s policy of relying on the US nuclear umbrella for security and its nuclear energy policy.

5.3 The dream of the hibakusha for a nuclear-free world
The consistent theme that runs through all the struggles of the hibakusha is their commitment to nuclear disarmament. Hibakusha recognize, as no one else can, the inhumanity of nuclear weapons and they are committed to ensuring that they are never used again. Even greater than the satisfaction they feel from being vindicated by the courts is the satisfaction they will feel when their struggle brings about the elimination of these evil weapons. For them, achieving this goal is at least as urgent as getting their own health needs addressed.

Time is short on both counts. May the political wheels turn quickly to fulfill their dreams within their lifetimes.

Report compiled by Citizens’ Nuclear Information Center and Legal Counsel for Atomic Bomb Disease Group Lawsuit (Tokyo Group)

Note
1. The data collected by ABCC and RERF also formed the basis of the International Commission on Radiological Protection’s (ICRP) recommended radiation exposure standards for nuclear workers and the general public. ICRP’s safety standards are based on assessments of the increase in radiation dose over the background dose. However, since RERF did not give due consideration to internal radiation exposure from residual and induced radiation, the assessment of background dose is artificially high. Therefore, the increase in radiation dose appears to be artificially small. This leads to underestimation of the risk associated with exposure to radiation.