II. Meandering into the Twentieth Century
. . .
K. The Farben War Crimes Case Debate
The small disagreement over the outcome of the Farben case framed by DuBois's 1952 tirade and Justice Morris's nearly private response smoldered silently for over twenty-five years. But scholarly histories published in the last two decades have kindled a larger debate. It is anyone's guess why it took so long to subject the Farben trial to more scholarly scrutiny. But, for those who want to examine it in more detail, we briefly review the available literature on the Farben case.(251)
The Farben trial got negligible attention in law reviews apart from Justice Morris's own straight-forward account in 1949, Major War Crimes Trials in Nurnberg.(252) Besides DuBois's 1952 polemic, The Devils's Chemists, republished in 1953 as Generals in Grey Suits,(253) at least three books and a graduate thesis have sought to assess the historical meaning of the Farben case.
Thirty years after the trial, Joseph Borkin wrote The Crime and Punishment of I.G. Farben.(254) Borkin had an indirect North Dakota association. In 1934, he went to work for a United States Senate Special Committee chaired by Senator Gerald P. Nye of North Dakota. The Committee was investigating the munitions industry. Borkin's first job there was to investigate a deal between Standard Oil Company, New Jersey, and Farben.(255)
Borkin backed DuBois. His chapter titles illustrate this: "3. I.G. [Farben] Prepares Hitler for War"; "4. The Marriage of I.G. [Farben] and Standard Oil under Hitler"; "6. Slave Labor and Mass Murder"; "9. I.G. [Farben] Wins the Peace"; "10. Corporate Camouflage." His compact twenty-one-page chapter 8, "I.G. [Farben] at Nuremberg," is a much more succinct account of the trial than DuBois's. Yet Borkin certainly recognized Justice Morris "voiced his irritation with the proceedings" when he scolded the prosecutor: "This trial is being slowed down by a mass of contracts, minutes and letters that seem to have such slight bearing on any possible concept of proof in this case."(256)
Intriguingly, Borkin implies in a foreleaf that General Eisenhower's postwar experience with Farben gave shape to President Eisenhower's famous pronouncement on leaving the presidency in 1961:
In the councils of Government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. We must never let the weight of this combination endanger our liberties or democratic processes.(257)
Borkin followed up on that by describing General Eisenhower's investigation, recommendation, and decision "that [Farben's] strategic position in the German economy must be broken as 'one means of assuring world peace.'"(258)
Nearly a decade later in 1987, Peter Hayes wrote Industry and Ideology: I.G. Farben in the Nazi Era,(259) portraying Farben as carelessly stumbling into disgrace by "opportunistically and defensively" associating with Nazi policies and military conquests.(260) From extensive research, Hayes concluded Farben selected Auschwitz for a manufacturing plant before the possibility of using inmate labor developed, but that its "decision to occupy the site, however unintended and unforseeable the consequences, contributed mightily to the camp's expansion and its eventual evolution into a manufacturer of death."(261)
Hayes minimized Farben's plundering of facilities in occupied countries: "There was no 'rape of the European chemical industry.' Only in Austria and Czechoslovakia did [Farben's] takeover account for more than 5% of any subject country's chemical output."(262) By this, Hayes seems to imply Farben officials were only a "little bit" guilty of War Crimes. Perhaps that is a possible view of the modest punishment imposed on them, but Hayes goes on to damn the Farben convicts far more with his faint justification:
Farben's leaders acted as they thought their calling required. They disagreed cautiously with the trend of events from time to time but sooner or later sought to benefit from it. Their sense of professional duty encouraged them to regard every issue principally in terms of their special competences and responsibilities, in this case to their fields and stockholders. In obeying this mandate, they relieved themselves of the obligation to make moral or social judgments or to examine the overall consequences of their decisions.(263)
In other words, Hayes said politely, Farben officials acted for prosaic reasons of profit. Hayes certainly does not excuse them; rather he smoothly condemns them for unmitigated greed.(264)
In 1988, Raymond G. Stokes wrote Divide and Prosper: The Heirs of I.G. Farben Under Allied Authority, 1945-1951. In brief summaries of the Farben trial,(265) Stokes concluded "the results of the trial bore astonishingly little relation to the alleged crimes," and "[o]ne could sympathize with chief [sic] prosecutor Josiah DuBois in his bitter assessment of the sentences as 'light enough to please a chicken thief.'"(266)
Stokes speculated on why the punishment was so mild "[d]espite the gravity of the offenses."(267) He discounts Borkin's theory, "in his book length indictment of the entire history of the firm," "that the emergence of the Cold War between the United States and the Soviet Union influenced the majority of the court, [because] it is difficult to imagine the precise mechanism through which this might have taken place."(268) Stokes believed "[m]ore readily apparent explanations are at hand [for the short prison sentences], although we will never know for certain."(269) Stokes felt "the mild punishment fit with the American judicial tradition of light sentences for 'white-collar crime.'"(270) He thought an "even more compelling" reason was that, "strategically, the prosecution conducted its case poorly at times," particularly by not emphasizing the horrors of Auschwitz more.(271)
Stokes mainly charted how the Farben cartel was divided by the Allies after the war to lessen its military-industrial influence, and how the three separate companies, BASF, Bayer, and Hoechst, were not stunted, but thrived. Stokes concluded:
The irony is that the same creativity and adaptability that allowed German industrialists to embrace autarky and to prepare Hitler's armies with the tools needed for aggression--qualities often exercised by the very same men--were responsible for the success of West German chemical manufacturing under the new conditions of the postwar period.(272)
In 1994, Mark H. Foster submitted a thesis on the Farben case to the University of North Dakota in partial fulfillment of requirements for a graduate degree.(273) Foster drew on a "collection . . . of . . . relatively complete Nuremberg trial document[s]" that included "not only a full set of prosecution documents, but also of the defense documents as well."(274)
Foster's 244-page thesis assayed existing publications on the Farben case. "Authors who have utilized the Nuremberg documentary record to focus specifically on IG Farben have taken differing views on the question of the firm's guilt."(275) Foster categorized DuBois at "one extreme," and Hayes at the "other pole."(276) Foster listed an extensive bibliography of unpublished works, published works, books, and articles that gives plenty of material for further study.(277)
Foster concluded that "justice was indeed served in the Farben Case."(278) He reasoned: "The leadership of IG Farben was never a willing accessory to the Nazi regime."(279) Noting a few examples of kindnesses to certain individual employees by some defendants, Foster concluded "the leaders of IG Farben acted reasonably and fairly to defend the good name of their firm as well as they felt they could safely do when impinged upon by a government and revolutionary party gone mad with racism and pride."(280) "[I]t is entirely possible that they indeed did act heroically, sacrificing their reputation in order to lessen actual harm."(281)
Bleakly, Foster rationalizes the "relatively light" sentences for those found guilty of crimes against humanity as "well in the range of what one might serve on a manslaughter charge after inadvertently striking down a pedestrian while speeding or driving under the influence,"(282) but he does not compute or weigh the number of "pedestrians" wiped out at Auschwitz. Foster thought the sentences were meant "to deter others, out of sheer fear of the possibility of prison, from taking risks on the road which can, on rare occasions, result in manslaughter."(283) In his view, the convictions did "represent a deterrent against allowing any outside forces from manipulating a firm into accepting slave labor on its premises or into participating in a venture associated in any way with a forced labor camp which could possibly become the next Auschwitz."(284)
The belated and ongoing controversy over Justice Morris's role at Nuremberg illustrates how judging, often, can be difficult. Still, by his vote to convict some corporate officers of complicity in crimes against humanity, North Dakota's Justice Morris demonstrated leadership. His experience at Nuremberg presaged his influence on the North Dakota Supreme Court a decade later when he helped bring about modernization of civil procedure.
251. For a first-person account of life at the Auschwitz camp by one of relatively few survivors who was a slave-laborer at the buna factory being built by Farben see Primo Levi, Survival in Auschwitz (1985) (republication of a book first published in Italy in 1958, and first translation published by The Orion Press in 1960).
252. See Morris, supra note 212. Also see Maximilian Koessler, American War Crimes Trials in Europe, 39 Geo. L.J. 18-112 (1950), for a broad overview of the American War Crimes Trials. It only passingly mentions the Farben and Industrialist trials, but it contains an extensive discussion of the procedures used, the legal theories of the prosecutions, and the legal theories of the defendants.
253. See DuBois, supra note 219; Borkin, supra note 226.
254. See Borkin, supra note 226.
255. See Borkin, supra note 226, in preface.
256. Borkin, supra note 226, at 141.
257. Pres. Dwight D. Eisenhower, Farewell Address to the Nation (Jan. 17, 1961), reprinted in Dwight D. Eisenhower 1890-1969: Chronology-Documents-Bibliographical Aids 141, 143 (Robert I. Vexler ed., 1970).
258. Borkin, supra note 226, at 157.
259. See Hayes, supra note 236.
260. Hayes, supra note 236, at 218.
261. Hayes, supra note 236, at 351.
262. Hayes, supra note 236, at 216.
263. Hayes, supra note 236, at 382.
264. "We cannot say that a private citizen shall be placed in the position of being compelled to determine in the heat of war whether his government is right or wrong, or, if it starts right, when it turns wrong." Hayes, supra note 236, at 332 (citing Morris, supra note 212) The I.G. Farben Case, supra note 224, at 1126, reported that part of the judgment and included this quote. That Hayes chose to quote Justice Morris for that item, rather than the judgment itself, is intriguing.
265. See Raymond G. Stokes, Divide and Prosper: The Heirs of I.G. Farben under Allied Authority, 1945-1951 at 54-55, 151-55 (1988).
266. Id. at 54-55.
267. Id. at 152.
268. Id. at 152-53.
269. Id. at 153.
272. Id. at 208-09.
273. Mark H. Foster, IG Farben and the Road to Auschwitz: Failed Ethics In An Early High-Technology Enterprise (1994) (unpublished M.A. thesis, University of North Dakota) (on file with the University of North Dakota Chester Fritz Library).
274. Id. at 3 n.2. This collection was assembled by Dr. Howard Russell, who had been a professor of English Language and Literature at UND during the 1930s, while he served as Secretary General of the American Military Tribunals at Nuremberg from May 1948 to December 1949. Dr. Russell placed those unpublished materials at the University of North Dakota, and Foster dedicated his thesis to him. See id. at i.
275. Id. at 24.
277. See id. at 245-49. But, curiously, Foster's bibliography does not list Justice Morris's law review article as a source. See id.
278. Id. at 239.
279. Id. at 236.
280. Id. at 240.
281. Id. at 242.
282. Id. at 239.
283. Id. at 239-40.
284. Id. at 240.