TOKYO—Three executives of Tokyo Electric Power Company (TEPCO) who ignored repeated warnings of a potential tidal wave that could result in a nuclear disaster, which did in fact take place, were found not guilty of criminal negligence resulting in death and injury by a Tokyo Court on Thursday. Many feel justice was poorly served. However, a former prosecutor says that the verdict was to be expected.

The Four-Hour Verdict

The Tokyo District Court ruled former executives of TEPCO were not guilty of criminal negligence, in the only criminal prosecution to come out of the 2011 nuclear disaster in Fukushima Prefecture, Japan.

The cataclysm at the Tokyo Electric Power Company (TEPCO) Fukushima Nuclear Power Plant in March of 2011 resulted in over 100,000 people losing their homes, wide-spread radioactive pollution, injuries, and the deaths of patients who had to be evacuated. The disaster, on the scale of Chernobyl, raised alarms around the world about nuclear energy and atomic safety.

The disaster area has not been cleaned up entirely and is essentially a nuclear accident still in progress, requiring constant cooling. Radioactive water stored at the TEPCO facilities is likely to be dumped into the ocean next year—probably after the Olympics.

The three former executives of TEPCO who were indicted on charges of professional negligence resulting in injury and death were: Tsunehisa Katsumata, 79, chairman of TEPCO at the time of the accident, and two former vice presidents—Sakae Muto, 69, and Ichiro Takekuro, 73.

The trial centered on whether these three could be held criminally responsible for what the Japanese Parliament’s Fukushima Nuclear Accident Independent Investigation Commission called “a man-made disaster.”

The central issue at stake could be summarized as this: Did the TEPCO officials know about the possibility of a nuclear-meltdown-inducing tidal wave, when did they know, and what did they do—or not do about it?

TEPCO’s six-reactor plant, located on the Pacific coast, was disabled after tsunamis triggered by the massive earthquake of March 11, 2011 flooded power supply facilities, which were unprotected, and crippled reactor cooling systems. Some reactors suffered fuel meltdowns, while hydrogen explosions damaged others.

The indictment blamed the three former executives for injuries to more than 10 people from hydrogen explosions at the plant, as well as the deaths of 44 patients forced to evacuate from nearby hospitals.

As early as 2002, TEPCO and the Japanese government were aware of a potentially disastrous earthquake and tidal wave causing a nuclear accident.

The prosecutors argued, and the court also acknowledged that several times between February 2008 and March 2009 the TEPCO executives were warned of the risk of a tidal wave 14 meters (45 feet) high or higher hitting the power plant and causing a potential nuclear disaster. On March 11, tidal waves between 11.5 and 15.5 meters (50 feet) did hit the power plant, knocking out the power grid and, yes, as predicted for years, triggering the nuclear disaster.

“ Legally the judgment made sense but on an emotional level, gut instinct level—it all seems wrong and the judges must know that. ”

There were also independent reports that suggested the earthquake's tremors caused a nuclear meltdown in the 40-year-old Reactor One even before the waves hit, but those allegations were not considered by the court.

The verdict, which took several hours for the judges to finish reading out loud—starting at 1:15 p.m. and ending around 4:30 p.m. with a short break—concluded that while the TEPCO executives did receive several warnings of a tidal wave large enough to cause a nuclear accident, they were justified in taking no safety measures for a number of reasons:

1) If they had taken the warnings seriously and tried to take countermeasures it would have required them to close the plant down temporarily, which was considered prohibitively expensive.

2) There were questions as to how seriously to take the data about tsunamis.

3) Even if the TEPCO executives had acted on the warnings, they probably wouldn’t have completed safety countermeasures in time.

In reaching the decision, the court stated that tsunami forecast information was vague, and that the three could not have “realistically” foreseen a disaster on such a grand scale.

It took the judges so long to read out the explanation for their ruling because as ex-prosecutor Nobuo Gohara explains, “Legally the judgment made sense but on an emotional level, gut instinct level—it all seems wrong and the judges must know that. They wanted to convince people their judgment makes sense.”

Residents of Fukushima Prefecture took the judgment less gracefully. “It’s a disgrace. It’s a slap in the face and it shows that the courts here always value profits over people,” said a 67 year old farmer from the area who had come to hear the verdict himself this afternoon.

Former prosecutor Gohara noted, “There are limits to the Japanese justice system and I have said from the start that it was unlikely the individuals would be found guilty. What you have in the Fukushima Nuclear disaster is a failure of policy and of the entire organization. Japan does not have a legal mechanism for holding a corporation responsible for criminal behavior, and in this case the charges were criminal negligence—on an individual level. The hurdle is very high to prove that.”

“ What you have in the Fukushima Nuclear disaster is a failure of policy and of the entire organization. ”

The Trial That Almost Never Took Place

The trial of TEPCO executives almost never took place at all.

In June of 2012 residents of Fukushima Prefecture submitted criminal complaints against TEPCO executives and central government officials to try to make sure someone was found responsible for the nuclear accident. As noted, the Japanese Parliament’s Fukushima Nuclear Accident Independent Investigation Commission called it “a man-made disaster," so it would seem to follow that men should be help accountable.

However, the Tokyo District Public Prosecutor's Office decided not to indict anyone named in those complaints. In typical Tokyo Prosecutor's Office fashion, they deliberately tried to bury the story at first by leaking their decision not to prosecute on the day Japan won the bid for the 2020 Olympics.

Despite the best efforts of the prosecutors not to serve the public interest, a prosecutorial review board decided on two separate occasions that the former executives should be indicted and made to stand trial. The Prosecutorial Review Board system was introduced in May of 2009 as part of judicial reforms in Japan that included the introduction of a modified jury system. If eight of 11 citizens chosen for the board agree that the prosecutors have failed to do their job, and that indeed an indictment is warranted—on two separate occasions—the individual named must stand trial. The court designates civilian lawyers to act as prosecutors, who then indict the individual. In February of 2016, the three former executives were indicted formally. The trial began in June of 2017. All of the former executives pled not guilty. The prosecution asked for five years in prison.

Jokyu Kokumin

It should be noted that even after the TEPCO executives were indicted, they were not jailed, although the charges were very serious and involved loss of life. In Japan, suspects in criminal cases typically are arrested and held for up to 23 days. But the executives of TEPCO, who are politically connected, belong to what the Japanese public now angrily refer to as Jokyu Kokumi (upper-class citizens who are above the law) so they remained at large during the entire trial. Carlos Ghosn, the former Chairman of Nissan charged with far lesser crimes, but a foreigner, spent months in detention without bail while prosecutors tried to extract a confession.

Miwa Chiwaki, a 49-year old woman who was living in a small village in Fukushima Prefecture at the time of the meltdown, was outraged by the verdict. She is the spokesperson for a group of citizens supporting the pursuit of criminal justice in the Fukushima nuclear disaster.

She told The Daily Beast, “It’s as if the Japanese courts said that there is no one responsible at all. The argument that TEPCO executives would have had to shut down the power plant to put safety measures into place, therefore they had reason not to do it, makes no sense. It is the same as saying corporate profits matter more than people. The Japanese courts care more about the well-being of a company than a person. At least the case established that they knew of the danger...and did nothing.”

The designated prosecutors in the case may appeal and demand a second trial. In Japan, prosecutors do have the right to appeal a case. Not guilty verdicts are rare and occur in less than one percent of all criminal cases. In general, prosecutors almost always appeal when losing the first round, but the prosecutors in this case are civilian lawyers. It is not clear what will happen next, or if anything will happen at all.

Nuclear power plant operators in Japan have faced charges of criminal negligence resulting in death in the past and were found guilty. In April 2003, the Mito District Court found six of employees of JCO guilty over a fatal nuclear accident. They ruled that the company had allowed workers to use buckets to pour uranium solution into a processing tank, causing a nuclear fission chain reaction that resulted in the deaths of workers. The guilty were given suspended sentences and served no time in jail.

Hiroyuki Kawai, a lawyer who represents the 5,700 Fukushima residents who filed the original criminal complaint, said in a press conference, “It’s a terrible verdict. Yet, if there had been no indictment, the evidence would have never seen the light of day. In that sense, [the trial] has a historical significance.”