The Tokyo District Public Prosecutors Office on Sept. 9 announced that it would not indict any of the 42 people against whom accusations and complaints had been filed in connection with the disaster at Tokyo Electric Power Co.’s Fukushima No. 1 nuclear power plant, which was triggered by the March 11, 2011, earthquake and tsunami. But most of these individuals, especially former Tepco officials and former officials of nuclear regulation and overseeing organizations, should not think that they share no responsibility for the nuclear disaster.

The prosecution cleared former Prime Minister Naoto Kan, former trade and industry minister Banri Kaieda (now Democratic Party of Japan chief), former Chief Cabinet Secretary Yukio Edano and Mr. Shunsuke Kondo, head of the Nuclear Energy Commission, of any suspicion. The prosecution said that others, including former Tepco Chairman Tsunehisa Katsumata, former Tepco President Masataka Shimizu, former Nuclear Safety Commission head Mr. Haruki Madarame and former Nuclear and Industrial Safety Agency chief Mr. Nobuaki Terasaka, would not be indicted due to a lack of evidence. These individuals should realize that the prosecution’s decision only means that it was difficult for it to prove their professional negligence given the nature of the Criminal Code, which requires strict conditions for indictment on charges of professional negligence resulting in deaths and injuries.

The decision has angered many members of the public, especially residents of Fukushima Prefecture. They will view the fact that no officials of Tepco and nuclear regulatory and safety bodies are to be indicted as absurd given the fact that some 150,000 Fukushima residents remain evacuees, that more than 1,500 people have reportedly died due to health conditions triggered by the evacuation, and that the nuclear plant continues to leak radioactive substances into the environment even now.

Some 14,700 people from across the nation filed the accusations and complaints against the 42 people with the Fukushima and Tokyo District Public Prosecutors offices. The most common accusation was that the officials were in a position to foresee that a huge tsunami could strike the Fukushima No. 1 nuclear power plant, but failed to take necessary preventive measures — thus they were responsible for deaths and injuries suffered by local residents as a result of the nuclear disaster. The complainants pointed out that Tepco engineers in 2008 estimated that a tsunami with a maximum height of 15.7 meters could hit the nuclear plant if a major earthquake took place off the Fukushima coast, and that if Tepco had taken protective measures the disaster could have been prevented. They also said that in 2002 scientists had stated that a major earthquake could strike in the sea between Chiba Prefecture’s Boso Peninsula and Tohoku’s Sanriku area.

The prosecution, however, stated that the estimate in question derived from a worst possible scenario established by Tepco employees and that experts did not regard the tsunami as a likely event or the estimate as accurate. The prosecution also said that even if Tepco had immediately begun reinforcement work, it would not have been completed before the March 11 quake and tsunami. Furthermore, the prosecution said that government organizations, including the Central Disaster Prevention Council, did not foresee the possibility of a quake as large as the 3/11 temblor. Therefore, the prosecution said, it was difficult to assume that Tepco officials could have concretely predicted the occurrence of such a quake.

But many people will find the prosecution’s logic unconvincing because Tepco’s disaster preparations were so grossly inadequate. Tepco only assumed that a tsunami with a maximum height of 6.1 meters could hit the Fukushima No. 1 plant. In a decision that would prove to be catastrophic, Tepco placed 10 of its 13 emergency backup generators in the basement of a low-lying building. When the 15.5-meter tsunami struck the plant, all but one of the backup generators were flooded and the reactors could no longer be cooled, leading to core meltdowns in reactors Nos. 1, 2 and 3, and hydrogen explosions in reactors Nos. 1, 3 and 4. Even if Tepco did not foresee the possibility of such a large tsunami, common sense would have dictated placing the critical backup generators on high ground to eliminate any possibility of flooding.

The public prosecutors questioned the 42 people concerned on a voluntary basis. Although the prosecution claims that it did all it could, it did not even carry out searches of Tepco offices, which effectively eliminated the possibility of finding hidden evidence.

Regarding the accusation against Mr. Kan, the complainants said that his visit to the stricken plant a day after the earthquake caused a delay in the venting of steam to lower pressure inside the reactors. Mr. Kan refused to be questioned by the prosecution and instead submitted a document in which he denied responsibility for the delay. Ultimately, the prosecution decided that he and Mr. Kaieda, who oversaw NISA, did not commit professional negligence.

In a move that angered the complainants, the prosecution transferred the investigation jurisdiction over the case from Fukushima to Tokyo. The complainants plan to ask a prosecution inquest committee, an 11-member citizens’ legal panel, to review the case. But the prosecution’s decision deprived them of the opportunity to take the case to a panel in Fukushima, which would have been composed of people who directly experienced the horror of the nuclear disaster. The Tokyo panel that will handle the case should strictly scrutinize the prosecution’s investigation.

It must be remembered that in its investigative report on the Fukushima nuclear crisis, a Diet commission declared that it was a “profoundly man-made disaster.” The evidence — particularly Tepco’s failure to place the backup generators in a safe location as well as its chronic mishandling of the crisis — overwhelmingly suggests that the commission’s conclusion is correct. Given the absence of indictments in the world’s second worst nuclear disaster, it is clear the Criminal Code is insufficient to deal with a case of this nature. The government and the Diet should enact a new law that will force companies — rather than individuals as is presently the case — to take criminal responsibility for inadequate disaster preparations and incompetent management of disaster crises.

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