https://portside.org/2021-04-03/other-nuremberg-trials-seventy-five-years

On April 14, 1945, as a group of American soldiers were leading him down the road in the village of Wittbräucke, German steel magnate Albert Vögler bit into a concealed cyanide ampoule, collapsed against an armored car, and died almost instantly. “I am ready to take part in the reconstruction of Germany,” he had told fellow industrialist Friedrich Flick earlier that year. “But I will never let myself be arrested.” Across the country, businessmen were doing the same thing: Siemens alone saw five of its board members kill themselves as the Red Army advanced through the streets of Berlin and captured its factory.

Those industrialists who remained behind, shredding documents and wrenching portraits of Hitler off the walls, would soon find themselves on the list of candidates for war crimes prosecution at Nuremberg—executives from Krupp, IG Farben, Daimler-Benz, Volkswagen, and elsewhere whose companies had collectively smelted steel for tanks and purified aluminum for gunbarrels, formulated the synthetic rubber and gasoline necessary for tires and engines, built airplanes and U-boats and V-2 rocket circuit boards, and manufactured nerve gas and Zyklon B. They had seized Jewish property and swallowed up businesses sold off for pennies by those fleeing Nazi persecution. They had contracted with the German government to exploit the labor of concentration camp internees and sited factories with the specific goal of better leveraging this free and disposable workforce. They had planned, profited from, and above all else made possible the Nazi war machine and its genocides.

This year marks the seventy-fifth anniversary of the conclusion of the most famous of the Nuremberg trials, the International Military Tribunal, which began in November 1945. While the tribunal—which sentenced Hermann Göring, Joachim von Ribbentrop, and other prominent Nazi military and political figures—has dominated our memory of the Nuremberg trials, it was only the first of a series of criminal proceedings against doctors, administrators, jurists, and others—including private businessmen, whose prosecution was seen by many at the time as essential to both reaping justice and establishing a lasting peace.

The Trials of the Industrialists have become, in the words of historian S. Jonathan Wiesen, “undoubtedly one of the most overlooked aspects of postwar German business history.” When the prosecutors presented these cases before the judges, they were asking them to consider, implicitly and explicitly, the connection between capitalism and warfare, and where—or even whether—it was possible to draw a line between legitimate pursuit of profit and immoral greed. The conclusions these judges arrived at would shape not only the future of international law but the arc of Western Europe’s postwar reconstruction as a whole.

Links between the world of big business and the Nazis were extensive: over 50 percent of companies listed on Berlin’s stock exchange in 1932 had significant ties to the Nazi Party, and they experienced a boom in stock value after Hitler seized power the following year. It did not take corporate leaders long to realize the profits their businesses could reap from German aggression. In 1933 Gustav Krupp von Bohlen und Halbach, whose metalworks would churn out everything from Panzers to anti-aircraft cannons during the war, submitted to Hitler a plan for the complete reorganization of Germany’s industry “guided by the idea of bringing [it] into agreement with the political aims of the Reich Government.” Steel giant Hermann Röchling encouraged Hitler to invade the Balkans and leveraged his ties with the regime to cherry-pick which factories and mines his firm would take over in occupied territory; these same production sites were then policed by SS officers and staffed with forced laborers over whose heads hung the constant threat of imprisonment in a company-run labor camp at Etzenhofen. The understanding that economic imperialism had played a major role in Germany’s aggression was therefore widely held, not just among Soviet thinkers but among the Western Allies as well.

As such, administrators of the occupied zones viewed the dismantling of Germany’s powerful business cartels—particularly in the realm of iron and steel—as crucial to ensuring that the country could never again wage war. “We cannot safely leave Germany until actual ownership of important business property has been transferred to non-Nazis,” wrote RM Havens, an economic specialist stationed in the American sector. Managers were detained, their wartime actions scrutinized; at factories that had not been bombed out completely, quantities of industrial machinery were seized and either destroyed or requisitioned. In a speech delivered in the fall of 1945, General Dwight D. Eisenhower called for the massive chemical conglomerate IG Farben to be broken up, its war matériel factories destroyed, its assets used as reparations, and the remit of its future research tightly controlled. Farben, he argued, “must be completely dissolved as one means of assuring world peace.”

In the face of war crime accusations, corporate leaders were unapologetic. Managers at Siemens, for instance, protested that their firm had dealt admirably with the “Jewish Question”—making use of Nazi terminology even as they asserted their complete lack of anti-Semitism. Other such rhetorical callbacks to fascist rule were clearly deliberate, as when Ruhr Valley industrialist Hermann Reusch angrily compared the Allies’ policy of cartel-breakups to Aryanization (whereby Jewish business owners were forced to surrender their property to non-Jews). One internal company memo at the manufacturer GHH records an official claiming that postwar labor unions were “preparing the way for a Russian/communist Final Solution.” In both public and private statements, Germany’s businessmen categorically refused to acknowledge their own complicity in the country’s crimes, instead casting themselves as the helpless victims of anticapitalist persecution equal in its cruelty and senselessness to the Holocaust.

With the specter of prosecutions looming, companies took it upon themselves to mount a defense, publishing corporate histories and founder biographies scrubbed conspicuously clean of incriminating details and imbued with a deep sense of victimization. Siemens, which had forced Auschwitz inmates to manufacture airplane components, boasted that it had received a raft of thank-you letters from its former slave laborers, who they claimed were well nourished and given opportunities to visit theaters and museums. When the Allies announced plans to strip Henkel of equipment they deemed to be excess, the chemical manufacturer barraged both British officials and the public at large with pamphlets bearing titles such as Death by Dirt! and warning that the soap shortage engendered by such a move would cause mass death from disease. These kinds of transparent PR efforts generally proved ineffective, but a force much larger would soon tilt things drastically in the favor of the German war profiteers now facing down a day in court: the onset of the Cold War.

After the International Military Tribunal, presided over by all four Allied powers, the plan had originally been to hold a second quadripartite trial that would focus exclusively on industrialists who had collaborated with the Third Reich. But dissatisfaction with this idea gradually mounted, particularly among officials in the British government who were leery both of the cost and of applying ex post facto law. (Winston Churchill, for his part, favored “political disposition” of the accused—a euphemism for execution without trial.) In the background, meanwhile, tensions between the USSR and America were rising, leading to the concern that a collaborative trial might become “a wrangle between the capitalist and communist ideologies” that “the Russians  might exploit . . . to discuss irrelevancies.” Robert Jackson, who was taking time off from the Supreme Court bench in order to serve on the U.S. legal team at Nuremberg, expressed displeasure at the idea of working with “the Soviet Communists and the French Leftists” on a trial against industrialists.

As the prospect of another international prosecutorial effort faded, it was decided that all further war crimes cases—including those of industrialists—would instead be divided between the occupying powers and undertaken separately. This switch to so-called “zonal trials” left Allied governments free to deal with the accused in their sector as they saw fit—which included the ability, if they wished, to do nothing. The British promptly dropped almost all suits against industrialists; the United States cut its list of possible defendants down by over half. What might have been a capacious legal probe into the wartime actions of German industry was reduced to a handful of prosecutions targeting only those profiteers whose crimes were most heinous and most easily proven in a court of law.

One reason for this dramatic narrowing of scope was geostrategic. With the rise of Cold War tensions, German’s industrial capability was suddenly transformed from a dangerous liability into a potent asset. Eying the dividing line that now jagged its way through the continent, Americans began to view Germany as a bulwark against the further spread of communism in Europe—but for the country to prosper, it had to rebuild the manufacturing capabilities lost during the war. In a parallel move, Americans scrapped any plans for prosecuting corporate heads at the Tokyo War Crimes Tribunal in a bid to make sure that Japan would emerge from the war as a firmly capitalist state. The friction between occupying powers was not lost on German industrialists, who took the opportunity to conflate their own legal troubles with the jeopardy of the nation as a whole. After being arrested multiple times in relation to his wartime past, Wolf-Dietrich von Witzleben, who had helped to run Siemens’s massive forced labor program, warned British authorities that “the way I am being treated has physical and psychological effects that will endanger the reconstruction process.”

By 1947 the U.S. legal team in Germany had narrowed its focus to the actions of only three companies: IG Farben, Krupp, and Flick KG. Yet as these attorneys prepared to go to court, they faced resistance from certain quarters back home. The investigations of Jackson and his colleagues were coming up against a very awkward fact: a number of U.S. companies—most prominently Standard Oil, Dow Chemical, DuPont, and General Electric—had significant dealings with precisely the firms whose heads were now poised to stand trial. Standard Oil had shared information about its own synthetic rubber research with Farben while blocking U.S. production of the same, and a deal between General Electric and Krupp related to tungsten carbide, a metal-hardening agent crucial in the manufacture of machine tools and armor-piercing ammunition, carved the world’s markets up beween the two companies and allowed them to massively inflate prices. The business-friendly Truman administration was so worried about the private sector’s reaction to these industrialist trials that the government attempted to force Josiah DuBois, lead attorney in the Farben case, to drop “aggressive war” from the list of charges. DuBois resisted this pressure—but by the time the decisions were handed down, it would be clear that the judges themselves had been influenced by the same political currents that had so drastically curtailed the scope of the trials themselves.

The sentences received by the handful of businessmen who eventually made their way to trial in the American zone were, in the bitter words of DuBois, “light enough to please a chicken thief.” At the Farben Trial, ten of the defendants were found not guilty of all charges, while the maximum sentence received by any of the remaining fourteen was eight years with time served. Half of the six Flick defendants were likewise acquitted, and the judge presiding over the Krupp trial dismissed all charges of crimes against peace, arguing that it was simply the duty of a company board to pursue profit. At the trials’ inception, the prosecution had “aspired to nothing less than indicting the entire Nazi state and analyzing its workings.” Now the criminal acts of the defendants were excused as just how one did business.

The trial documents contain statements that are strikingly credulous. In a passage from the Farben discussion regarding the company’s large-scale and systematic exploitation of slave labor, for example, the decision remarks that the firm “voluntarily and at its own expense provided hot soup for the workers on the site at noon.” Perhaps the most striking aspect of the rulings is the acceptance in many cases of pressure from above as a legal defense, which anyone familiar with the judgments of Nuremberg’s International Military Tribunal will recognize as a complete reversal of that court’s rejection of the “just following orders” argument. Considering Flick’s yearly donations of 100,000 Reichsmarks to SS leader Heinrich Himmler—monies which Flick said he believed were for the purposes of supporting Himmler’s “cultural hobbies”—the court stated that tacit pressure to donate must be considered a mitigating factor.

Many of the claims by industrialists that the state had coerced them into crimes against humanity were simply false. As the sole dissenting opinion in the Farben case notes, at no point during the war did the German government mandate that factories use slave labor or mete out the kinds of abuses to which forced laborers were subjected. Executives’ assertions that forced labor was necessary in order for the company to meet production quotas hides the fact that Farben had leeway to set its own quotas, which in any event it often exceeded. It is not difficult to spot the knot of contradictions at the heart of the industrialists’ defense. They claimed that business was fundamentally apolitical but also said that it was their patriotic duty to act in alliance with national goals; they said they were terrified of the deadly consequences of noncompliance but also protested that they had no knowledge of the extent of Nazi terror the moment it began to implicate them. The majority’s willingness to look past these inconsistencies and to accept the industrialists’ actions as merely part of business carried with it, in DuBois’s words, “the clear implication that any society could be filled with such men with no danger whatever to the peace of the world.”

DuBois’s claim hints at a certain conservatism lurking at the heart of even the most ambitious arguments put forth by prosecutors. When he scoffed at the idea that “such men” could possibly exist in a peaceable society, he was leaning on the comforting but dangerous idea that the businessmen in the docks at Nuremberg were aberrant, exceptional creatures. In fact, of course, corporate violence occurs every day, motivated by the same drive for profits that led Farben to run its own Auschwitz subcamp in order to cut down on labor costs. Historian Kim Christian Priemel has observed that the industrialists at Nuremberg failed to see that their self-identification as “ordinary businessmen who could find no flaw in having conducted ordinary business under extraordinary circumstances was part of the problem, not of the solution.” The corollary to this is that construing these men and their conduct as extraordinary is in their own way a part of the problem as well.

Upon their return from Nuremberg, multiple members of the U.S. legal team came under suspicion from Senator Joseph McCarthy of harboring communist sympathies due to their work prosecuting business leaders. McCarthy needn’t have worried. Even at the initial, most ambitious stages of the industrialist prosecutions, Western Allies at Nuremberg never intended to launch a systematic critique of the economic order. In much the same way as the New Deal aimed to create a gentler and more stable form of capitalism in the form of the welfare state, the ultimate goal of the Americans at Nuremberg was not to attack big business writ large but rather to delineate what was and was not an acceptable form of big business. The prosecution assured the court that there was nothing wrong with the arms trade per se, and structural criticism of German industry focused on cartels, thought by many American economists at the time to be inherently tied to illiberalism. In this way, the prosecution sought to punish German industrialists for doing capitalism badly—an effort that, they hoped, would ultimately lead to a revitalized free market in both Germany and the United States itself.

“From this perspective,” Marxist legal scholar Grietje Baars writes, “Nuremberg was not a failure. Rather, by producing capitalism’s victor’s justice it played an important part in this process of further congealing capitalism and institutionalizing international law.” The body of international criminal law that has developed in the wake of Nuremberg largely excludes corporations—to speak nothing of the individual executives that compose them—from scrutiny.

Yet Baars is highly skeptical of well-intentioned calls to hold corporations accountable for their actions via the application of international law, arguing that the original sin of such a position lies in accepting the validity of corporate power in the first place. The answer to the problem of corporate impunity, according to this interpretation, is not the expansion of legal apparatuses in the hopes of circumscribing the actions of businesses but rather the work of challenging capitalism itself. Today many of the companies under investigation at Nuremberg have returned to the fore of the business world. Both in Germany and around the world, there remains much work to be done.