Courtesy of guest blogger, Trevor Korb

As the International Military Tribunal (IMT) took stride in late 1945, the United States began negotiating with the other major Allied powers about the possibility of further trials more expansive in scope. The result of these negotiations would be Council Control Law No. 10, signed December 20, 1945, which granted authorization to conduct trials of suspected war criminals in each respective occupied zone. While each Allied power pursued different sets of cases, the stated objective of the agreement was to “establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders” (Lippman, p. 181). Recognizing that criminal acts were committed by many more individuals than could be prosecuted the International Military Tribunal, which focused solely on high-ranking Nazis such as Hermann Goering or Martin Bormann, these subsequent trials sought to indict Germans from both the public and private sectors, within and outside of Nazi government, including military generals, judges, physicians, and leading industrialists.

The question of whether to include business leaders in the original indictments for the IMT came up early on in negotiations, and leading up to the indictment of Gustav Krupp as the sole representative from big business. After some initial confusion between Allied legal teams as to which Krupp was actually being indicted (Gustav or his son Alfried), the prosecution failed to get Krupp on the defendant list when, after Krupp’s lawyers motioned to postpone his trial for medical reasons, he suffered an attack of cerebral thrombosis which rendered him unable to stand trial (Lippman, p. 177). In the end there would be no major German industrialists included as defendants at the IMT, adding another incentive for U.S. and other Allied prosecutors to initiate a further set of trials in each occupied zone (Lippman, p. 178).

For its part, the United States Military Tribunals (USMT) consisted of twelve separate cases, each of which focused on bringing to justice individuals who were not “major war criminals,” but still willingly aided the planning and execution of numerous Nazi crimes against humanity, crimes against peace, and war crimes. Three of the twelve American trials charged some of Germany’s largest corporations at the time (Krupp AG, Flick KG, and IG Farben) with war crimes for the use of slave labor and concentration camp labor, as well as plundering and the seizure of property in occupied territories. Industrialists also faced charges including conspiracy to wage an aggressive war, constituting a crime against peace.

The USMT prosecution built on the concept of conspiracy developed in the trial of major war criminals and spearheaded by Thomas J. Dodd. In establishing a foundation for criminal liability, prosecutors at the IMT had described the entire “Nazi Plan” (e.g. Hitler’s desire for Lebensraum, superiority of the “Aryan” race, Final Solution) as essentially one large conspiracy from which much of the criminal liability emanated. Using both the Nuremberg Principles and the IMT as their basis, as well as extensive documentation containing evidence of the economic preparation for war, prosecutors at the USMT extended the charge of conspiracy into the realm of private enterprise. They argued that big business had been heavily involved in the original “Nazi Plan” from the very beginning, and that everything followed from this initial conspiracy, essentially rendering the three above-mentioned corporations accomplices to the numberless Nazi crimes committed.

The cases against Krupp AG, Flick KG, and most famously IG Farben, would represent “the first time that a court attempted to impose liability on a group of persons who were collectively in charge of a company” (Ramasastry, p. 106). Although the indictments themselves were against individual executives, in each case the USMT based most of their findings on each company’s role as a corporate entity. For example, judges would castigate executives at both IG Farben and Krupp AG, who acted through and on behalf of their respective companies, for the eagerness to which they took advantage of concentration camp labor, including building plants and factories next to Auschwitz. As stated by Judge Paul Herbert presiding over the Farben trial, “the defendants, members of the Vorstand [board], cannot, in my opinion, avoid sharing a large part of the guilt for numberless crimes against humanity” (Jeffreys, p. 402).

Although prosecutors did not come away with all the convictions they hoped for, executives and board members from all companies received sentences that included both prison time and seizures of personal wealth and assets. Indeed, the three industrialist trials still find relevance today, as most corporate violations of human rights “involve complicity, aiding and abetting violations by another actor, most often the host government” (Wettstein p. 37). Although the human rights violations committed in the three industrialist cases were on a much more massive scale than many human rights violations today by MNCs, the cases still serve as a basis for defining key legal concepts such as complicity and provide case support for human rights lawyers today.

–Trevor Korb, UConn ’14 MA Literatures, Cultures, and Languages

Citations:
Jeffreys D (2008) Hell’s Cartel: IG Farben and the Making of Hitler’s War Machine. Metropolitan Books: New York
Lippman M (1995) War Crimes Trials of German Industrialists: The “Other Schindlers”. Temple International and Comparative Law Journal 9: 173-267
Anita Ramasastry A (2002) Corporate Complicity: From Nuremberg to Rangoon – An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations. Berkeley Journal of International Law 20: 90-159
Wettstein F (2012) Silence as Complicity: Elements of a Corporate Duty to Speak Out Against the Violation of Human Rights. Bus Ethics Q 22: 37-61

Images available in Thomas J. Dodd Papers.