Company Acting as the Instrument of Human Rights Violations

The Nuremberg trials already indicated that corporate officials could commit war crimes and crimes against humanity. The role and accountability of business entities in crimes committed by the Nazi regime were discussed during the Nuremberg trials, but no corporate entity was prosecuted during the trials. Companies were also benefiters of the Nazi regime, as it was not solely the political and military powers, but also profit-driven companies that profited from the atrocities. Various companies supplied drugs, money or other assistance in the establishment and

217 The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Volume X, The I.G. Farben and Krupp Trials, Published for the United Nations War Crimes Commission by his Majesty’s Stationery Office (1949) 38.

218 Ratner (n 9) 512.

219 United States Court of Appeals for the Second Circuit, Kiobel v. Royal Dutch Petroleum Co., Docket Nos.

06-4800-cv, 06-4876-cv. (17 September 2010) 51.

220 Dhooge (n 149) 205.

sustenance of concentration camps and the other atrocities committed. For example, more than six thousand German companies used slave labour, which consisted of concentration camp inmates, detainees and prisoners of war.²²¹

The Charter of the International Military Tribunal at Nuremberg did not allow the prosecution of business entities or corporate officials and hence no company was prosecuted for their involvement with the atrocities committed by the Nazi regime.

The admittance of legal persons was initially discussed during the drafting process of the Charter, ²²² but it was later decided that only individuals could be prosecuted due to fears related to the implications of declaring organisations to be criminal.²²³ Even without the addition, certain industrialists could have been prosecuted in accordance with the Nuremberg Charter as direct perpetrators or accomplices to a common plan to commit war crimes and crimes against humanity,²²⁴ but none were eventually tried. The US Military Tribunal did not have jurisdiction over legal persons, but prosecuted the corporate officials from companies such as I.G.

Farben, Flick and Krupp. The cases, however, touch upon the role profit-driven companies played in human rights violations.

The twenty-three defendants connected to I.G. Farben, which was at that time the largest chemical company in the world, were prosecuted, for example, for the use of forced labour, plunder and spoliation, involvement in medical experiments on prisoners and supplying of cyanide-based pesticide to concentration camps, which was used in the extermination of their inmates.²²⁵ The United States Military Tribunal noted that Farben as a juristic person was capable of violating the laws of war.²²⁶ The I.G. Farben judgment notes that ‘it is the theory of the prosecution that the defendants individually and collectively used the Farben organization as an instrument and through which they committed the crimes enumerated in the indictment’. The corporate officials being tried were hence seen merely as ‘acting through the instrumentality of Farben’²²⁷ and were later held liable for their actions by virtue of their relation to that company. The USMT did note that Farben had

221 Alberto L. Zuppi, ‘Slave Labor in Nuremberg’s I.G. Farben Case: The Lonely Voice of Paul M. Hebert’ (2006) 66 Louisiana Law Review 495, 496.

222 Matthew Lippmant, ‘War Crimes Trials of German Industrialists: The “Other Schindlers”’ (1995) 9 Temple International & Comparative Law Journal 173, 176.

223 Andrew Clapham, ‘The Question of Jurisdiction Under International Criminal Law Over Legal Persons’ in Menno T Kamminga and Saman Zia-Zarifi (eds), Liability of Multiantional Corporations under International Law (Kluwer Law International 2000).

224 Desislava Stoitchkova, Towards Corporate Liability in International Criminal Law (Intersentia Publishing Ltd 2010) 52.

225 Thirteen were convicted with convictions ranging between war crimes, crimes against humanity and forced labour. United States Military Tribunal, the United States of America v. Carl Krauch, et al., “I.G. Farben”

(30 July 1948).

226 Law Reports of Trials of War Criminals, Volume X, The I.G. Farben and Krupp Trials, Published for the United Nations War Crimes Commission by his Majesty’s Stationery Office (1949), 165.

227 Ibid 3.

violated Article 47 of the Hague Regulations on the Laws and Customs of War in relation to pillage, plunder and spoliation. The USMT had no jurisdiction over legal persons and could not enforce penalties on Farben.²²⁸

In the Krupp case, Alfried Felix Alwyn Krupp von Bohlen und Halbach and eleven other corporate officials were tried.²²⁹ Krupp AG was prosecuted for crimes against peace, war crimes and crimes against humanity, mostly regarding plunder and spoliation, and also using concentration detainees and prisoners of war as labour. None were found guilty of war crimes or crimes against humanity. The same implication was made in the Krupp case by noting the guiltiness of the crimes of the actual company.²³⁰The judgment discusses the actions of Krupp in detail in relation to the use of slave labour by the request of the company.²³¹ The defendants attempted to defend their actions with regard to forced labour by the necessity of the actions, as the company would have lost their property and factories if they did not comply with the forced labour regime.²³² The USMT noted that the fear of losing factories could not constitute a necessary action, but on the other hand the loss of life for certain defendants was accepted as a defence of necessity.²³³ Necessity derived from the option of a “moral choice”²³⁴ in which the court reviewed whether the defendants would have had an alternative choice of action. The Krupp firm had willingly employed forced labour and had not done under coercion. In other words, the USMT denied the inclusion of financial reasons as an acceptable defence for the violations.

When reviewing the judgments by the judgments of USTM, it becomes clear that corporate officials are considered to be capable of violating international law when committing these abuses through the company and on behalf of the company.

In the Flick judgment, the court noted that who ‘knowingly by his influence and money contributes to the support thereof must…[by author] be deemed to be, if not a principal, certainly an accessory to such crimes’.²³⁵ In another judgment, the court noted that an individual who acts as an accessory through commercial transactions to such violations could be hence held criminally responsible for war

228 Ibid 52.

229 United States Military Tribunal, Trial of Alfried Felix Alwyn Krupp Von Bohlen Und Halbach and Eleven Others, “Krupp” (30 June 1948).

230 Law Reports of Trials of War Criminals (n 226) 150.

231 Ibid 96-102.

232 Ibid 146.

233 Ramasastry (n 149) 112.

234 Law Reports of Trials of War Criminals (n 226) 54.

235 Ibid 104.

crimes.²³⁶ The Farben judgment made it apparent that a company can at least act as an instrument through which human rights violations occur.