II.

CASE STUDIES: HISTORIC PRECEDENTS AND

CURRENT PRACTICE
On the Origins of Individual
Criminal Responsibility
under International Law

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for Business Activity
IG Farben on Trial

Florian Jessberger*

Abstract
Over 60 years ago, the top management of the then largest corporation in Europe, the
German conglomerate, IG Farben, stood trial before a US Military Tribunal sitting at
Nuremberg. The trial brought to light the company’s deep involvement in Nazi crimes.
The article presents the background of this landmark case, analyses the findings of the
Tribunal and contextualizes the judgment from the perspectives of legal policy and
contemporary history. The article concludes that the Farben case represents the first
attempt to hold individuals accountable for their business activity under international
criminal law and, thus, is a significant starting point for efforts, both academic and
practical, to deal with individual criminal responsibility of business leaders today.

1. Introduction
‘If not actually marching with the Wehrmacht, [IG] Farben at least was not
far behind. But translating the criminal responsibility to personal and individ-
ual criminal acts is another matter.’1 These few words by the US Military

* Lichtenberg Professor of International and Comparative Criminal Law,

Humboldt-Universita«t zu Berlin (Germany); Member, Board of Editors of this Journal.
[florian.jessberger@rewi.hu-berlin.de]
1 The proceedings of United States v. Carl Krauch, et al., or the ‘Farben Case’, including the judg-
ment of the Military Tribunal, are documented in the so-called green series, see Trials of War
Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Vols VII
and VIII, Nuernberg, October 1946^April 1949 (Washington, D.C.: United States Government
............................................................................
Journal of International Criminal Justice 8 (2010), 783^802 doi:10.1093/jicj/mqq038
Advance Access publication 8 July 2010
ß Oxford University Press, 2010, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org
784 JICJ 8 (2010), 783^802

Tribunal VI2 in its judgment of July 1948 point to the key challenge faced in the
trial against the top management of the then largest corporation in Europe,
the IG Farbenindustrie AG (IG Farben). The indictment contained no charge
against IG Farben as the legal entity referred to by the Tribunal,3 since the ap-
plicable law did not foresee corporate liability. Instead, the prosecution was of
the opinion that the accused had used Farben as a tool to commit crimes
against peace, war crimes and crimes against humanity ç through the pro-
duction of synthetic fuel and rubber required and used for the wars of aggres-
sion waged by Nazi Germany; plundering and spoliation of other people’s

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property in the German-occupied territories; supply of toxic gas Zyklon B to
the concentration camps; conducting of medical experiments on prisoners;
and use of forced labour.
The topic of this article, 60 years after the proclamation of the judgment in
the Farben trial, relates to a relatively under-researched chapter of
Vergangenheitsbewaeltigung, of coping with the past, on the one hand, and
international criminal law, on the other. The trial of the major war criminals
before the International Military Tribunal has featured largest in the academic
debate on post-war justice, particularly among legal scholars. This has meant
that the 12 trials, conducted subsequently before US Military Tribunals in
Nuremberg, including the Farben trial discussed here, have been put in the
shade by this major, high-profile trial. Hence engaging with the Farben trial
has to this day seemed to be largely a privilege of historical research ç con-
ducted chiefly as an annex to the history of the company. This article seeks
to show that the trial deserves more attention from legal scholarship, particu-
larly international criminal law scholarship. The article argues that ç jointly
with its ‘sister-trials’ against Krupp and Flick ç Farben represents the first
attempt to hold individuals accountable for their business activity under
international criminal law. The article, however, aims not to present
an in-depth analysis of the legal issues raised in the Tribunal’s judgment.
Rather, its main objective is to enquire into the significance of the trial as
such from the perspectives of legal-policy and contemporary legal history.
The first, introductory part briefly explains the origins of IG Farben and its de-
velopment in the Third Reich and gives a survey of the trial, including the ap-
plicable law and the trial’s outcome (chapters 2 and 3). The second part
presents and, with the restrictions outlined above, analyses the statements
made by the Military Tribunal in its judgment (chapters 4 and 5). The third
part, finally, attempts to situate the trial from different perspectives and estab-
lish its significance in the light of present-day international criminal law
(chapters 6 to 9).

Printing Office, 1953); available online at http://www.mazal.org/NMT-HOME.htm (visited 25

March 2009) (‘IG Farben’).
2 Hereafter Military Tribunal or Tribunal.
3 IG Farben, supra note 1, Vol. VIII, at 1153.
 Origins of Individual Criminal Responsibility for Business Activity 785

2. The IG Farben in the Third Reich

The IG Farben was founded in 1916, first as a loose conglomerate, a community
of interest as the German name translates, representing leading German
manufactures of chemical products. In 1925 the companies involved, amongst
others BASF, Bayer, Hoechst and Agfa, joined to form a stock company
(Aktiengesellschaft, AG). The largest corporation in Europe saw the light of
day, and became at the same time the largest chemical company worldwide.4
It is undisputed in historical research that Farben profited from the policy of

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the Nazi regime during the Third Reich.5 In the 10 years following 1933, the
IG’s profits multiplied fivefold. Towards the end of the war, it employed over
150,000 people, a good third of them forced or slave labourers. Historians
today tell us that the company managers were not convinced national social-
ists, but industrialists with a more traditional commitment to liberalism and
free enterprise. However, it is equally certain that with Hitler’s seizing power
the ranks between the economic leaders and the Nazi regime were closed and
soon a web of personal and institutional connections between companies, the
party and the state was created.6
So it was no love at first sight that linked the IG and the regime, but rather a
marriage of convenience.7 On the one hand, the IG needed Hitler. In times of
growing international competition and a stagnating world market the com-
pany was urgently dependent on support by the Reich and on lucrative state
orders.8 On the other hand, Hitler needed the IG. His mandate was to free
German politics from the ‘chains’ binding it to the oil sources and rubber plan-
tations of its enemies.9 What Hitler needed most to wage war, apart from
Krupp steel, was fuel, rubber and explosives ç and here the IG could help.
Even if early justifications for the production of expensive synthetic rubbers
and fuels were obviously economic nonsense, there was, as Go«ring put it, no al-
ternative ‘from the standpoint of waging war’.10 The gearing of German indus-
try towards the goal of achieving autarky from foreign commodities became
clearly visible with the four-year plan that Hitler presented in 1936: the

4 See for a detailed history of the IG Farbenindustrie, J. Borkin, Die unheilige Allianz der I.G.
Farben: Eine Interessengemeinschaft im Dritten Reich (Frankfurt a.M.: Campus Verlag, 1986), at
42 et seq.; see also IG Farben, supra note 1, Vol. VIII, at 1085-1096.
5 P. Hayes, ‘IG Farben und der IG Farben-Proze: Zur Verwicklung eines Grokonzerns in die
nationalsozialistischen Verbrechen’, in Fritz Bauer Institut (ed.), Auschwitz. Geschichte,
Rezeption und Wirkung: Jahrbuch 1996 zur Geschichte und Wirkung des Holocausts (2nd edn.,
Frankfurt a.M.: Campus Verlag, 1997), at 99; delving into the entanglements of the IG Farben
with the Nazi state, P. Hayes, Industry and Ideology: IG Farben in the Nazi Era (Cambridge:
Cambridge University Press, 1987).
6 See Hayes, Auschwitz, supra note 5, at 99, 101 et seq.; Borkin, supra note 4, at 72 (‘nazification’of
IG Farben).
7 Borkin, supra note 4, at 8.
8 Ibid., at 55.
9 B. Wagner, IG Auschwitz: Zwangsarbeit und Vernichtung von Ha«ftlingen des Lager Monowitz
1941^1945 (Mu«nchen: Saur, 2000), at 26 et seq.
10 Borkin, supra note 4, at 67.
786 JICJ 8 (2010), 783^802

German economy had to be able to go in to war in four years and the German
army had to be ready for action. The four-year plan that Go«ring was in charge
of carrying out was ç as an official in the economy ministry remarked ç
practically an ‘IG plan’.11 The unholy alliance that had linked IG Farben and
the Nazi state was to hold until the end of the war ç for mutual benefit12
and, as it turned out, to the cost of many war victims, concentration camp
prisoners and forced labourers.

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3. The Trial
The defeat and capitulation of the German Reich also marked the end of the IG.
The allies had recognized its outstanding importance for the war economy of
the Third Reich and confiscated the whole of its assets under Control Council
Law No. 9.13 As early as in April 1945, a group of investigators from the
Finance Division of General Eisenhower installed itself in the IG Farben build-
ing in Frankfurt am Main.14 Its assignment was to collect incriminating mater-
ial with the aim to uncover the entanglement between the IG and the
national socialist regime with a view to possible criminal proceedings. The
trial against Carl Krauch and others before the US Military Tribunal VI finally
began in the Nuremberg Palace of Justice on 14 August 1947,15 a bare six
months after the judgment of the International Military Tribunal against the
major war criminals.16 At that time, Friedrich Flick had already spent four
months in the dock at US Military Tribunal V in Nuremberg.17 The trial against
Alfried Krupp, the third major trial before American Military Tribunals con-
cerned with the responsibility of industry and business in the crimes com-
mitted by the Third Reich, was about to begin.18

11 Cited according to ibid., at 71.

12 See e.g. B. Boll, ‘Der IG-Farben-Proze’, in G.R. Ueberscha«r (ed.), Der Nationalsozialismus vor
Gericht: Die alliierten Prozesse gegen Kriegsverbrecher und Soldaten 1943^1952 (2nd edn.,
Frankfurt a.M.: Fischer, 2000), at 133, 138; Hayes, supra note 5, at 325.
13 Control Council Law No. 9: Providing for the Seizure of Property Owned by I.G. Farbenindustrie
and the Control Thereof, 20 September 1945, in Amtsblatt der Kontrollrats der Deutsch (Official
Gazette of the Control Council for Germany), 30 November 1945, at 6.
14 In detail on the investigations of the IG Farben, Office of the Military Government for Germany,
United States, Investigation reports, i.a. re IG Farben AG, Ludwigshafen, Werk Oppau, 1 May
1945^30 June 1945.
15 An overview of the background and course of the trials is given by Boll, supra note 12, at 133 et
seq.; Wagner, supra note 9, at 297 et seq.; A. Weinke, Die Nu«rnberger Prozesse (Mu«nchen: C.H.
Beck, 2006), at 84 et seq.
16 See Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14
November 1945^1 October 1946, 42 volumes, documented in the so-called blue series, available
online at http://www.mazal.org/IMT-HOME.htm (visited 11 January 2010); the judgment of the
International Military Tribunal is published in Vol. 1, at 171^134. Hereafter cited as IMT
judgment.
17 See K. Drobisch, ‘Der Prozess gegen Industrielle (gegen Friedrich Flick und andere)’, in
Ueberscha«r (ed.), supra note 12, at 121 et seq.; S. Jung, Die Rechtsprobleme der Nu«rnberger
Prozesse: Dargestellt am Verfahren gegen Friedrich Flick (Tu«bingen: J.C.B. Mohr, 1992), passim.
18 See F. Kro«ll, ‘Der Krupp-Proze’, in Ueberscha«r (ed.), supra note 12, at 176 et seq.
 Origins of Individual Criminal Responsibility for Business Activity 787

The legal basis of the trial was Allied Control Council Law No. 10 of 20
December 1945.19 Referring to the London Agreement,20 Control Council Law
No. 10 laid down the applicable substantive law, in particular the definition of
the crimes ç crime against peace, war crimes and crimes against humanity
ç and determined the modes of criminal responsibility as well as the possible
sanctions. On the basis of Control Council Law No. 10 the military governor of
the American occupation zone had set up the Military Tribunals and estab-
lished the applicable procedural law.21 The President of the United States ap-
pointed Curtis Shake, the former Chief Judge of the Supreme Court of Indiana,

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James Morris, a Supreme Court Judge from North Dakota, and the Dean of the
Louisiana State University Law School, Paul Hebert, as Judges to the Tribunal.
The indictment included the whole of top management: Carl Krauch, chair-
man of the board until 1940 and chairman of the supervisory board from
then on, all members of the board in office at the end of the war, and three
other executives. The prosecution was represented by 12 American prosecutors
headed by Chief of Counsel for War Crimes, Josiah DuBois. The 23 accused,
who all pleaded ‘not guilty’ were defended by 60 counsel, some of whom, like
Rudolf Dix and Otto Kranzbu«hler, had already appeared before the
International Military Tribunal.
The strategy of the prosecution consisted in describing the accused as ‘gen-
erals in grey suits’,22 who had used IG as a tool for their criminal acts. Those
were to be called to account who had never fired a gun but without whom
the Nazi machinery would have come to a halt.23 As the chief prosecutor
declared in his opening statement:
These are men who stopped at nothing. They were the magicians who made the fantasies of
‘Mein Kampf’ come true. They were the guardians of the military and state secrets of the
Third Reich. They were the master builders of the Wehrmacht; they and very few others
knew just how many airplane and truck tires and tank treads were being built from
Farben buna rubber and just how large the stockpile of explosives was. They knew every
detail of the intricate and enormous engine of warfare, and watched its growth with an
architect’s pride. They knew that the engine was going to be used, and they planned to use
it themselves. Europe was dotted with mines and factories which they coveted, and for
each step in the march of conquest there was a program of industrial plunder which was

19 Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against
Peace and Against Humanity (Amtsblatt of the Control Council in Germany, No. 3, 31 January
1946, at 50) (‘CCL No. 10’).
20 ‘United States ^ France ^ Great Britain ^ Soviet Union: Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis’ (8 August 1945), supplement of
39 American Journal of International Law (1945) 257^264, at 257.
21 See Art. III(2) CCL No. 10 and Ordinance No. 7 of the Military Government, 18 October 1946:
Organization and Power of Certain Military Tribunals; supplemented by Ordinance No. 11, 17
February 1947 (published in K. Marienburg, Die Vorbereitung der Kriegsverbrecherpozesse im II.
Weltkrieg, Vol. 2 (Hamburg: Verlag Dr. Kovac, 2008), at 685 et seq.
22 See J. DuBois, Generals in grey suits; The directors of the ‘I.G. Farben’cartel, their conspiracy and trial
at Nuremberg (London: The Bodley Head, 1953).
23 B. Greiner, ‘IG Joe’: IG Farben-Proze und Morgenthau-Plan (Frankfurt a.M.: Fritz Bauer Institut,
1995), at 15.
788 JICJ 8 (2010), 783^802

put into prompt and ruthless execution. These are the men who made war possible, and
they did it because they wanted to conquer.24

By contrast, the defence attempted to portray the accused as fine upstanding

citizens and sincere businessmen. It was their tragedy, but not their fault, the
defence argued, to have lived and worked under a government that had forced
them to participate in crimes. Crimes which, above all, they had known noth-
ing about. As Dr Boettcher, the lawyer for defendant Krauch expressed in his
opening statement:

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::: instead of being an ambitious and ruthless industrial magnate, Dr. Krauch is an honor-
able Christian, a simple man, a research-worker and scientist, conscious of his responsibil-
ities, who never committed an offense but devoted his whole life to technical and scientific
progress ç and this not only for the benefit of Germany but also for that of other countries,
not least for that of the United States of America.25

After 152 days of proceedings, after questioning 189 witnesses and after con-
sulting over 6,000 documents, the Tribunal finally delivered its judgment on
29 July 1948.26 Of the 23 accused, 13 were convicted,27 the other 10 were
acquitted. None of the accused was found guilty of taking part in a war of ag-
gression. There were convictions for war crimes and crimes against humanity,
relating to the plundering and spoliation of foreign property and participation
in the slave labour programme. Compared with the maximum sentences fore-
seen in Control Council Law 10 ç the death penalty and life imprisonment ç
the sentences imposed, between one and a half and eight years of imprisonment,
were generally felt to be moderate.28 Since the time spent in pre-trial detention
was deducted from the sentence, most of the convicted were released after a
few months of detention; the remaining ones were granted amnesty in 1951.

4. The Judgment
The first count of the indictment concerned the alleged participation of the
defendants in the planning, preparation, initiating and waging of wars of

24 IG Farben, supra note 1, Vol. VII, at 101.

25 Ibid., at 210.
26 Legal remedies against the judgment were not allowed; see Ordinance No. 7, Art. XV, supra note
21. However, the military governor had been given the authority to alter the sentence in
favour of the convicted, in Art. XVII, but he did not exercise it.
27 The following defendants were found guilty under count 2 of the indictment and sentenced to
imprisonment: Schmitz (four years), von Schnitzler (five years), Bu«rgin (two years), Haefliger
(two years), Ilgner (three years), Ja«hne (one and a half years), Oster (two years), and Kugler
(one and a half years); under count 3 of the indictment: Krauch (six years), Ambros (eight
years), Bu«tefisch (six years), Du«rrfeld (eight years); under count 2 and 3 of the indictment: Ter
Meer (seven years); see IG Farben, supra note 1, Vol. VIII, at 1205^1208.
28 See Wagner, supra note 9, at 309. In his article H. Dix sums up the judgment as destroying the
myth of ‘collective guilt’ of the German industry and its most important representatives for the
outbreak of the war and its inhumanities. H. Dix, ‘Die Urteile in den Nu«rnberger
Wirtschaftsprozessen’, 17 Neue Juristische Wochenschrift (1949) 647^652, at 652.
 Origins of Individual Criminal Responsibility for Business Activity 789

aggression and invasions of other countries.29 The Tribunal took this line with
reference to a passage in the decision of the International Military Tribunal.30
With an eye to the former president of the Reichsbank and economy minister,
Hjalmar Schacht, the International Tribunal had stated: ‘It is clear that
Schacht was a central figure in Germany’s rearmament program. ::: But arma-
ment in itself is not a criminal offence according to the statute.’31 Thus, no ver-
dict of guilt could be rendered for participation in rearmament as such. Only
if there was proof of ‘knowledge and active participation’ in the planning, prep-
aration or waging of a war of aggression could conviction be justified on the

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grounds of a crime against peace.32 This was the basis on which the Tribunal
established its argument, which in the end led to the acquittal of all Krauch
and the other accused on this count.33
First, the accused knew nothing about the aggressive plans of the Reich
leadership, as only ‘insiders’ could have entertained the suspicion that Hitler’s
public assertions of his love of peace were no more than a deceptive man-
oeuvre. The Tribunal found that with regard to Hitler’s plans neither ‘common
knowledge’ nor ‘personal knowledge’ on the part of the accused could be
established:
It is a basic fact that a plan or conspiracy to wage wars of aggression did exist. It was pri-
marily the plan of Hitler and was participated in, as to both its formation and execution,
by a group of men having a particularly close and confidential relationship with the
Dictator. It was a secret plan. At first, it was general in scope and, later, became more specif-
ic and detailed.34
While it is true that those with an insight into the evil machinations of power politics might
have suspected Hitler was playing a cunning game of soothing restless Europe, the average
citizen of Germany, be he professional man, farmer, or industrialist, could scarcely be
charged by these events with knowledge that the rulers of the Reich were planning to
plunge Germany into a war of aggression::: We reach the conclusion that common know-
ledge of Hitler’s plans did not prevail in Germany, either with respect to a general plan to
wage aggressive war, or with respect to specific plans to attack individual countries, begin-
ning with the invasion of Poland on 1 September 1939.35

On this, the Tribunal concluded:

The evidence falls far short of establishing beyond a reasonable doubt that their [the de-
fendants’ ^ FJ] endeavors and activities were undertaken and carried out with the know-
ledge that they were thereby preparing Germany for participation in an aggressive war or
wars that had already been planned either generally or specifically by Adolf Hitler and his
immediate circle of Nazi civil and military fanatics.36

29 IG Farben, supra note 1, Vol. VIII, at 1082^1083.

30 Ibid., at 1100.
31 IMT judgment, supra note 16, Vol. I, at 308, 309.
32 IG Farben, supra note 1, Vol. VIII, at 1102 et seq.
33 See for this and the following IG Farben, ibid., Vol. VIII, at 1102 et seq.
34 Ibid., Vol. VII, at 1107.
35 Ibid., at 1106 et seq.
36 Ibid., Vol. VIII, at 1123.
790 JICJ 8 (2010), 783^802

And secondly the Tribunal held that the conviction on grounds of crimes
against peace was, already by definition, restricted to members of the inner
leadership circle, i.e. to the ones, who, like Hitler, Go«ring, Hess and von
Ribbentropp, were responsible for planning and carrying out high-level polit-
ical action. The accused were not guilty of crimes against peace,37 since their
activity ‘did not consist of making plans nor of guiding the Reich in its ambi-
tious intentions of aggression’ and their ‘participation had been at the level of
fellow travellers, not of leaders’. Rather the accused had ‘undoubtedly made
their services available roughly in the same way as thousands of other

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Germans, whose position was of some importance but nevertheless under the
rank of those leaders’, those leaders whom the International Military Tribunal
had condemned for crimes against peace.38
The second count of the indictment referred to IG Farben’s takeover of for-
eign companies in the territories occupied by Germany, which, as a matter of
fact, was not in dispute.39 In an interim decision of April 1948, the Tribunal
had already stated that these acts did not constitute crimes against humanity
since acts against property and assets were generally not covered by the defin-
ition of this crime.40 But had the accused committed war crimes as defined by
Control Council Law No. 10?
The legal starting point of the Tribunal’s reasoning was the 1907
Hague Convention on War on Land, to which the relevant provision of
Control Council Law No. 10 refers. According to the Convention, procuring pri-
vate or public property against the will and without the approval of the
person entitled to it is against international law ç independently of whether
a purchase price or compensation was paid. However, the Tribunal found that
the ‘voluntary’ transfer of property and assets was unobjectionable under inter-
national law, even in times of military occupation, and certainly not
punishable.41
The Tribunal elaborated that, at least in Poland, Norway and France, the IG
had taken part in the systematic plundering of foreign property, by taking
over the control of local companies, even if in many cases the IG had main-
tained the pretence of paying for the confiscated goods.42 In these cases, the
takeover had always been under pressure of threatened expropriation or na-
tionalization. However, there was no proof that all the accused had violated
international law by participating in these acts in a way justifying punishment.
While they had all attended the relevant IG meetings at which transactions in
the occupied territories were discussed, only eight of the accused had appropri-
ately been informed of the actual course of ‘negotiations’ with the companies

37 Ibid., at 1126, 1127.

38 Ibid., at 1117.
39 Ibid., at 1127^1167; see generally on this the IMT judgment, supra note 16, Vol. 1, at 238^243.
40 IG Farben, supra note 1, Vol. VIII, at 1084, 1085.
41 Ibid., at 1134, 1135.
42 Ibid., at 1139, 1140.
 Origins of Individual Criminal Responsibility for Business Activity 791

and of the compulsory methods applied. Consequently, only those eight were
found guilty of the war crime of plundering.43
The third count, finally, concerned IG’s participation in the ‘slave labor pro-
gram’ of the Third Reich and in the holocaust.44 The charge focused on three
different sets of facts: the supply of the toxic gas Zyklon B, the involvement in
medical experiments on prisoners, and the use of forced labour.
The first set of facts concerned the supplying of the toxic gas Zyklon B to kill
inmates of concentration camps by the ‘Deutsche Gesellschaft fu«r
Scha«dlingsbeka«mpfung’ (German Society for Pest Control and Elimination,

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DEGESCH), in which IG had a 42.5% stake. After hearing the evidence, the
Tribunal was not convinced that the accused really knew about the criminal
purpose for which the substance supplied was used.45 Such knowledge in the
Tribunal’s view, could neither be concluded from the fact that some of
the accused were members of the supervisory council of DEGESCH, nor from
the fact that quite extraordinarily huge quantities of the poison had been de-
livered to the SS, particularly as it was generally known that wherever a large
number of deported and displaced people were living together in cramped
quarters ç this meant concentration camps ç there was an increased re-
quirement for pesticides.
With the same rationale, the Military Tribunal also did not find persuasive
evidence to establish the guilt of the accused in the second set of facts,46 invol-
ving medical experiments on concentration camp inmates to test IG prepar-
ations. Of course, the deliberate infection of detainees with the typhoid virus
by SS doctors in order to subsequently try out medical remedies was, the
Tribunal stressed, a clear and punishable violation of international law.
However, the distribution of pharmaceutical preparations to medical specialists
for testing was a common procedure. The accused allegedly knew nothing of
the criminal methods of the camp doctors.
Finally, the third set of facts under this charge concerned the IG’s participa-
tion in the ‘slave labor program’ of the Third Reich.47 The fact that the IG ex-
ploited a large number of forced labourers was not even disputed by the
defence. They argued, however, that the accused had acted out of ‘necessity’
and thus had to be acquitted. However, the possibility of acquittal on the
grounds of necessity was not expressly foreseen in Control Council Law No.
10. On the contrary, the Control Council Law explicitly states: ‘The fact that
any person acted pursuant to the order of his government or of a superior

43 For full details, see ibid., Vol. VIII, at 1153^1167.

44 Ibid., at 1167, 1168.
45 See on this and the following ibid.,Vol.VIII, at 1167^1187; see also for the criminal responsibility
for sales and distribution of the toxic gas, Zyklon B, Trial of Bruno Tesch and Two Others (1946),
1 Law Reports of Trials of War Criminals (London, H.M.S.O., 1947), at 93 et seq., British
Military Court at Hamburg, available online at http://www.loc.gov/rr/frd/Military_Law/law-
reports-trials-war-criminals.html (visited 11 January 2010).
46 IG Farben, supra note 1, Vol. VIII, at 1169^1172.
47 Ibid., Vol. VIII, at 1172^1174; the Military Tribunal refers to the Slave Labor Program of the gov-
ernment (‘Reichsregierung’), IMT judgment, supra note 16, at 243^247.
792 JICJ 8 (2010), 783^802

does not free him from responsibility for a crime, but may be considered in
mitigation.’
However, with reference to a passage in the judgment of the International
Military Tribunal and the statements of Military Tribunal IV in the trial
against Friedrich Flick and others, the Tribunal did recognize necessity as a
ground for excluding criminal responsibility.48 The key precondition set out
by the Tribunal was that the actors had had no ‘moral choice’. Only if the
person concerned ‘was responsible for the existence or execution of such
orders or decrees, or his participation exceeded the extent required by these

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orders or was of his own volition’ was it, in the opinion of the Tribunal, not pos-
sible to invoke necessity. In the words of the Tribunal:
From a consideration of the IMT, Flick, and Roechling judgments, we deduce that an order
of a superior officer or a law or governmental decree will not justify the defense of necessity
unless, in its operation, it is of a character to deprive the one to whom it is directed of a
moral choice as to his course of action. It follows that the defense of necessity is not avail-
able where the party seeking to invoke it was, himself, responsible for the existence or exe-
cution of such order or decree, or where his participation went beyond the requirements
thereof, or was the result of his own initiative.49

On this basis, the majority of Judges ç Judge Hebert dissenting ç regarded the
participation of the accused in the slave labour programme as ‘excused’. After
all, it was only under the burden of responsibility for fulfilling the predefined
manufacturing goals that the IG yielded to the pressure of the Reich labour
office and employed foreign forced labourers.50 According to the Tribunal,
refusal to fulfil production targets or take part in the slave labour programme
would have been deemed high treason and sabotage and would have entailed
draconian sentences. As the Tribunal explained:
The defendants here on trial have invoked what has been termed the defense of necessity.
They say that the utilization of slave labor in Farben plants was the necessary result of com-
pulsory production quotas imposed upon them by the government agencies, on the one
hand, and the equally obligatory measures requiring them to use slave labor to achieve
such production, on the other. Numerous decrees, orders, and directives of the Labor
Office have been brought to our attention, from which it appears that said agency assumed
dictatorial control over the commitment, allotment, and supervision of all available labor
within the Reich. Strict regulations prescribed almost every aspect of the relationship be-
tween employers and employees. Industries were prohibited from employing or discharging
laborers without the approval of the agency. Heavy penalties, including commitment to
concentration camps and even death, were set forth for violation of these regulations. The
defendants who were involved in the utilization of slave labor have testified that they were
under such oppressive coercion and compulsion that they cannot be said to have acted
with that intent which is a necessary ingredient of every criminal offense. ::: In view of
these indisputable facts, established by the highest authority, this Tribunal is not prepared
to say that these defendants did not speak the truth when they asserted that in conforming

48 IG Farben, supra note 1, Vol. VIII, at 1175^1179.

49 Ibid., at 1179.
50 Ibid., at 1174.
 Origins of Individual Criminal Responsibility for Business Activity 793

to the slave-labor program they had no other choice than to comply with the mandates of
the Hitler government. There can be but little doubt that the defiant refusal of a Farben ex-
ecutive to carry out the Reich production schedule or to use slave labor to achieve that
end would have been treated as treasonous sabotage and would have resulted in prompt
and drastic retaliation. Indeed, there was credible evidence that Hitler would have wel-
comed the opportunity to make an example of a Farben leader.51

The only accused who could not successfully claim ‘necessity’ were those dir-
ectly concerned with constructing the plant that IG had built from 1941 right
next to the Auschwitz concentration camp, exploiting the manpower of the

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camp inmates.52 The IG had selected this site because, due to the proximity to
the concentration camp, a sufficient number of cheap labourers were readily
available.53 Neither the selection of the site nor the construction of the plant
and warehouse nor the use of forced labourers had taken place under coercion.
Even if, according to the judgment, the IG had not intended or deliberately fos-
tered inhumane treatment, the relevant boards and staff of the IG still ‘bore re-
sponsibility for the poor treatment of the workers’54 ç an euphemism for the
death of about 25,000 camp inmates.55

5. Legal Profiles of the Judgment

Any comment on the grounds for the judgment should, first, note that it was
undoubtedly a huge challenge to find and justify a judgment in the IG Farben
trial. The new, hardly tried legal basis, which did not always correspond to
the American preconceptions of the judges, the lack of precedents and, above
all, the flood of information to be dealt with, may all partly explain the fact
that the judgment did not always measure up to the highest professional stand-
ards. For instance, there is no clear-cut separation between the statement of
facts and the legal analysis; the legal assertions often remain vague.
Furthermore, their grounds remain patchy; there is a total lack of statements
on how the sentences were determined. Despite all technical imperfection,
the grounds for the judgment include some legal statements worth thinking
about. Four of these legal facets are now to be discussed.

51 Ibid., at 1174 et seq; it should be noted that a civil division of the district court (Landgericht)
Frankfurt a.M. did allow the claim for a compensation of 10,000 DM of the former prisoner
and forced labourer Norbert Wollheim against the IG Farben in liquidation; subsequently, the
IG Farben in liquidation came to an agreement with the prisoners having worked in
Auschwitz and Monowitz about a total compensation of 30 million DM; for the trial, commonly
known as ‘Wollheim trial’; see in detail J.R. Rumpf, ‘Der Fall Wollheim gegen die I.G.
Farbenindustrie AG in Liquidation’ (doctoral thesis at the Leibniz Universita«t Hannover, 2007).
52 See on this in detail IG Farben, supra note 1, Vol. VIII, at 1180^1187; see also Wagner, supra note
9, particularly, at 304, 306 et seq.
53 Against the assumption that the site was selected because of the availability of slave labour, see
the recent research, e.g. Hayes, supra note 5, at 99, 109.
54 IG Farben, supra note 1, Vol. VIII, at 1187.
55 For details on the conditions in the camp, see Borkin, supra note 4,‘Auschwitz III’ (Monowitz) at
116 et seq.
794 JICJ 8 (2010), 783^802

The starting point of the legal assessment was an acknowledgement

of the way the prosecution had construed the case: that there existed a
criminal system conducted by the regime in which the accused
participated in an objective, personally attributable way.56 The existence of
such a system and the IG’s role was largely beyond dispute: there was no
doubt that it had made a necessary contribution to the war of aggression,
‘incorporated’ a large number of foreign companies, and used forced labourers
on a gigantic scale. But were the individual accused also responsible for
this under criminal law? In the judgment, the Tribunal described its task as

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follows:
It is appropriate here to mention that the corporate defendant, Farben, is not before the bar
of this Tribunal and cannot be subjected to criminal penalties in these proceedings. We
have used the term ‘Farben’ as descriptive of the instrumentality of cohesion in the name
of which the enumerated acts of spoliation were committed. But corporations act through
individuals and, under the conception of personal individual guilt to which previous refer-
ence has been made, the prosecution, to discharge the burden imposed upon it in this
case, must establish by competent proof beyond a reasonable doubt that an individual de-
fendant was either a participant in the illegal act or that, being aware thereof, he author-
ized or approved it. Responsibility does not automatically attach to an act proved to be
criminal merely by virtue of a defendant’s membership in the Vorstand.57 Conversely, one
may not utilize the corporate structure to achieve an immunity from criminal responsibility
for illegal acts which he directs, counsels, aids, orders, or abets. But the evidence must es-
tablish action of the character we have indicated, with knowledge of the essential elements
of the crime. In some instances, individuals performing these acts are not before this
Tribunal. In other instances, the record has large gaps as to where or when the policy was
set. In some instances, a policy is set without clear indication that essential factual elem-
ents required to make it criminal were disclosed. Difficulties of establishing such proof due
to the destruction of records or other causes does not relieve the prosecution of its burden
in this respect.58

In the light of the decision of the Military Tribunal, the following two points
must be made regarding this fundamental problem of attribution under inter-
national criminal law. First, it turned out to be an insurmountable hurdle for
the Tribunal to prove what the law at least implicitly takes as a key element of
criminal responsibility: the perpetrator’s knowledge of the circumstances of
the case.59 Because of this, central counts of the indictment ç the war of
aggression, Zyklon B, human experiments ç were at stake. Here, an issue
which concerns the practice of international criminal law to this day becomes

56 See e.g. IG Farben, supra note 1,Vol.VIII, at 1172, the reasoning of the prosecution with regard to
the execution of the slave labour programme.
57 This assessment is especially remarkable as under Art. II(2)f) CCL No. 10 ç which is admittedly
questionable in terms of establishing guilt ç ‘[a]ny person::: is deemed to have committed a
crime [against peace]::: (a) if he held a high political, civil or military (including General Staff)
position in Germany or in one of its Allies, co-belligerents or satellites or held high position in
the financial, industrial or economic life of any such country.’
58 IG Farben, supra note 1, Vol. VIII, at 1153.
59 There is no general rule for subjective prerequisites for criminal responsibility in CCL No. 10;
but see for today’s international criminal law, Art. 30 ICC St.
 Origins of Individual Criminal Responsibility for Business Activity 795

obvious: the difficulty of attributing a crime to a certain person as a (factual)

problem of proof, not one of law. But even in light of the evidence presented
to the Tribunal it would have been more reasonable ç as Judge Hebert convin-
cingly stated in his dissenting opinion60 ç to openly admit that the accused
knew very well that Hitler wanted to arm himself for a possible war, and that
they made their contribution to rearmament ‘in reckless disregard’ of the
consequences.
Second, there is a surprising lack of statement in the judgment on the legally
precise categorization of the role of the accused ç either as claimed or as

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proven by the Tribunal ç as perpetrators, co-perpetrators, aiders and abettors,
etc. This is particularly surprising since ç compared with the Nuremberg
Statute of the International Military Tribunal ç it was a novelty and, one
might think, a step forward that Article II of Control Council Law No. 10 distin-
guishes between different modes of criminal responsibility.61 Perhaps a reason
for not finding anything on this matter in the judgment is due to the relatively
little differentiated Anglo-American theory of participation in crime, or the
power of precedence the IMT judgment reflected onto this trial. Whatever the
reason, anyone who hoped that the IG Farben judgment would shed some
light on the doctrine of participation in international criminal law will be
disappointed.
At last, a third, striking facet of the decision consists in Tribunal’s categoriza-
tion of the crime against peace as a leadership crime. Here the Tribunal links
up with a statement in the judgment of the International Military Tribunal,62
a statement that has held right into the international criminal law doctrine of
today.63
A final aspect that should be raised here is the recognition of necessity
as a ground for excluding criminal responsibility. Here, again, two points
must be made. First, this ground for acquittal is applied although
Control Council Law No. 10 does not include any general clause on ‘necessity’
but, as mentioned earlier, the possibility of excluding responsibility at least for
acting on orders is in fact expressly ruled out. Even if good reasons may be
found for recognizing necessity as a defence in international criminal law,64
one still misses a tenable justification; the judgment confines itself to the refer-
ence to a not entirely unambiguous sentence in the decision of the

60 ‘Concurring Opinion of Judge Hebert on the Charges of Crimes Against Peace’, Trial of War
Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. VIII
(Washington D.C.: U.S. Government Printing Office, 1949^1953), at 1211 et seq.
61 For details, see G. Werle, Principles of International Criminal Law (2nd edn., The Hague: TMC
Asser Press, 2009), at marginal no. 444.
62 IMT judgment, supra note 16, at 257, 261, 262.
63 In detail, Werle, supra note 61, marginal nos 1337, 1338.
64 See now, Art. 31(1)(d) ICCSt.; for details, see Werle, supra note 61, marginal nos 554 et seq.
796 JICJ 8 (2010), 783^802

International Military Tribunal.65 Referring to the IMT, the Military Tribunal

concluded:
Thus the [IMT] recognized that while an order emanating from a superior officer or from
the government is not, of itself, a justification for the violation of an international law
(though it may be considered in mitigation), nevertheless, such an order is a complete de-
fense where it is given under such circumstances as to afford the one receiving it of no
other moral choice than to comply therewith. As applied to the facts here, we do not think
there can be much uncertainty as to what the words ‘‘moral choice’’ mean. The quoted pas-
sages from the IMT judgment as to the conditions that prevailed in Germany during the

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Nazi era would seem to suggest a sufficient answer insofar as this case is concerned. Nor
are we without persuasive precedents as to the proper application of the rule of necessity
in the field of the law with which we are here concerned.66

And secondly, even if one ç in accordance with the Tribunal ç accepts the
general possibility of exclusion of responsibility on grounds of necessity, in the
case at hand there are doubts whether the requirements of the defence of ne-
cessity as they were established by the Tribunal itself were fulfilled ç and
again the dissenting opinion of Judge Hebert contains convincing statements
on this.67 Did the accused really have no other choice than to employ forced la-
bourers in their company? I do not want to answer this question here but turn
to the third part of my article and thus the assessment of the trial as a whole.
In doing so, I would like to illuminate the Farben trial from four different per-
spectives. The first one understands the trial as a building-block in the Allied
war crimes programme (chapter 6). The second looks at the broader political
context of the trial and the geopolitical setting in particular (chapter 7). The
third perspective situates the trial as an attempt to bring out the responsibility
of industrial elites for crimes under international criminal law in analogy with
corresponding attempts to try the military and political elites (chapter 8). And
finally, from the perspective of present-day international criminal law I will
ask what lessons must ç or may ç be learned from the Farben trial (chapter 9).

6. The Farben Trial as an Element of the Allied

‘War Crimes Program’
In the literature, the Farben trial falls usually along with the trials conducted
before American Military Tribunals up until 1949 under the heading of the

65 The IMT stated: ‘That a soldier was ordered to kill or torture in violation of the international law
of war has never been recognized as a defense to such acts of brutality, though, as the
Charter here provides, the order may be urged in mitigation of the punishment. The true test,
which is found in varying degrees in the criminal law of most nations, is not the existence of
the order, but whether moral choice was in fact possible.’ Judgment of the IMT, supra note 16,
at 224.
66 IG Farben, supra note 1, Vol. VIII, at 1176.
67 ‘Dissenting Opinion of Judge Hebert on the Charges of Slave Labour’, Trial of War Criminals
Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. VIII
(Washingtion D.C.: U.S. Government Printing Office, 1949^1953), at 1307 et seq.
 Origins of Individual Criminal Responsibility for Business Activity 797

‘Nuremberg Trials’.68 Subsuming them under this general heading may appear
inaccurate in some regards but it is justified, apart from the plain fact that all
these trials took place at the same location and in the same courtroom.
The trial of the major war criminals and the subsequent trials can be
grouped together on legal grounds and, above all, as a matter of legal policy.
The legal foundation, particularly the substantive law applied by the
Tribunals were first framed in the London Agreement of August, 1945 and
the annexed Charter of the International Military Court and found their way
into Control Council Law No. 10 in only slightly amended, occasionally supple-

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mented form.69 Above all, however ç and this lifts the subsequent trials out
of the mass of the remaining trials conducted on the basis of Control Council
Law No. 10 ç the Nuremberg trials were based on the same political and
legal policy decision: even before the end of the war, it is possible to perceive
the strategy of the victorious powers to highlight the entanglement of the
German elite in the national socialist regime through the means of public crim-
inal trials.70
The war crimes policy pursued by the Allies meant prosecuting high-level
members of individual professional groups.71 This is evident from the very
choice of accused at the major war crimes trial. The fact that no business lead-
ers were at trial alongside high-ranking representatives of the government,
party and military was an accident. A trial against Gustav Krupp was original-
ly planned, but it was dropped before the beginning of the main proceedings
due to his incapacity to stand trial.72 The attempt of the prosecutors to charge
his son, Alfried Krupp, instead, was unsuccessful.73 Thus, with criminal

68 Exemplarily, H. Reginbogin and Chr. Safferling (eds), Die Nu«rnberger Prozesse: Vo«lkerstrafrecht
seit 1945/The Nuremberg Trials: International Criminal Law since 1945 (Berlin, New York: De
Gruyter Saur, 2006).
69 See also preamble and Art. I CCL No. 10; IG Farben, supra note 1, Vol. VIII, at 1907, 1908; for de-
tails, see Werle, supra note 61, marginal nos 34^39.
70 Declaration of German Atrocities of 20 October 1943 in ‘Great Britain ^ Soviet Union ^ United
States: Tripartite Conference in Moscow’, supplement of 38 American Journal of International
Law (1944) 3^8, at 7, 8; for the development, see the documentation by K. Marienburg, Die
Vorbereitung der Kriegsverbrecherprozesse im II. Weltkrieg: Die Diskussion um die Bestrafung der
Kriegsverbrecher im II.Weltkrieg sowie dieVorbereitung der Kriegsverbrecherprozesses ^ insbesondere
des Nu«rnberger Prozesses ^ in den Kriegsjahren durch die Alliierten, volumes 1 and 2 (Hamburg:
Verlag Dr. Kovac, 2008), passim; on the considerations which led to the execution of the 12
follow-up trials, T. Taylor, Die Nu«rnberger Prozesse: Hintergru«nde, Analysen und Erkenntnisse aus
heutiger Sicht (Mu«nchen: Heyne, 1994), at 336 et seq.
71 See T. Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials under
Control Council Law No. 10 (Washington, D.C.: Government Printing Office, 1949), at 73 et seq.,
103.
72 ‘Order of the Tribunal granting postponement of proceedings against Gustav Krupp v. Bohlen’
(15 November 1945) in Internationaler Milita«rgerichtshof Nu«rnberg, Der Nu«rnberger Prozess
gegen die Hauptkriegsverbrecher vom 14. November 1945 ^ 1. Oktober 1946, Vol. 1 (Frechen:
Komet, 2000), at 156; available online at http://avalon.law.yale.edu/imt/v1-15.asp (visited 15
January 2010).
73 See on this ‘Motion of the Committee of Chief Prosecutors to amend the indictment by adding
the name of Alfried Krupp v. Bohlen as a defendant’ in ibid., at 158 et seq.; available online at
http://avalon.law.yale.edu/imt/v1-17.asp (visited 15 January 2010).
798 JICJ 8 (2010), 783^802

proceedings against doctors, lawyers, civil servants and others the US Military
Tribunals accomplished the legal policy concerns underlying the IMT trial.
This particularly applies to the entanglement of German industry and business
in the national-socialist regime. As many as three of the subsequent trials
were concerned with this issue ç those against Krupp and Flick as well as IG
Farben.74
The Nuremberg trials are quite rightly regarded as the ‘birth certificate’ of
modern-day international criminal law.75 And, regardless of the comparatively
little attention the Farben trial has found in legal writings, there is no question

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that it is one of the ‘leading cases’ to which we owe the breakthrough of inter-
national criminal law.

7. The Farben Trial as ‘Amicable Justice’ in Disguise?

Let me now bring in the wider political context within which the Farben
trial was planned and carried out. The trial took place during an interim
phase between the Third Reich and the imminent western integration of the
upcoming Federal Republic of Germany. At the same time, after the start of in-
vestigations and before the conclusion of the Farben trial, American foreign
policy was undergoing a turnabout in its attitude to Germany in general
and German industry in particular. Under the influence of US
Treasury Secretary Henry Morgenthau, the original goal was the ‘industrial
disarmament’ of Germany. Later on, in 1945^1946, the US Administration
adopted the Truman Doctrine, which sought to refrain from severe reprisals
against the industrialists.76 German industry was not to be ‘purged’; it was
to be recruited in view of the new communist enemy coming up on the
horizon.
In the Farben trial, Morgenthau’s ideas of tough dealing with representatives
of the German industry and business persisted long after the resignation of
the Treasury Secretary. The investigations against the IG, taken up immediately
after the end of the war, were conducted by the aptly named ‘Morgenthau

74 See on this in detail, Weinke, supra note 15, at 84 et seq. and the contributions by K. Drobisch,
‘Der Proze gegen Industrielle’ and F. Kro«ll, ‘Der Krupp-Proze’, in Ueberscha«r, (ed.) supra note
12, at 121 et seq., 176 et seq.; in detail on the finally unsuccessful initiative of Great Britain
and France to file a second lawsuit against the major war criminals before the IMT, Taylor,
supra note 70, at 23 et seq.
75 See M.C. Bassiouni, ‘Das Verma«chtnis von Nu«rnberg: eine historische Bewertung fu«nfzig Jahre
danach’, in G. Hankel and G. Stuby (eds), Strafgerichte gegen Menschheitsverbrechen: Zum
Vo«lkerstrafrecht 50 Jahre nach dem Nu«rnberger Prozessen (Hamburg: Hamburger Edition, 1995),
at 15 et seq.; Werle, supra note 61, at marginal nos 29, 37.
76 See on this, Boll, supra note 12, at 133, 134 et seq., 139, 140; Greiner, supra note 23, at 10 et seq.;
in its report the US Board of Inquiry which dealt under the presidency of the Senator Kilgore
with the liability of the German industry and economy had stated in 1945: ‘The facts clearly
hold the industrials jointly liable for the crimes committed by the National Socialists in their
addiction to world domination against the people of the world.’; quoted according to Jung,
supra note 17, at 15.
 Origins of Individual Criminal Responsibility for Business Activity 799

boys’. They also included the prosecutor in the Farben trial, Josiah DuBois, who
met with opposition from Washington even as main proceedings opened, cul-
minating in the express advice from home that convictions for crimes against
peace were to be avoided.77
So was the Farben trial, after the ‘loser’s justice’78 of Leipzig and the ‘victor’s
justice’79 of the International Military Tribunal, a covert ‘amicable justice’,
i.e. the expression of a justice that understood the accused to be prospect-
ive allies? It seems to me beyond doubt that the comparatively mild judgment
in the Farben trial reflected the changed political instructions. Whether it

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was caused by these instructions, as is often claimed or at least suspected in
historical research, seems to me to be questionable.80 It would seem plausible
to point out that the main reason for the mild judgments was the strategy of
the prosecution to portray the accused as ‘monsters’ who had obediently colla-
borated with the Nazis. Yet, this strategy had to fail ç independently of its ob-
jective grounds ç at least in a climate desirous of understanding the German
industrialists more as partners than as enemies.81
Leaving aside the effect the change of American position had on the trial
itself, it seems to me that we can here discern a leitmotiv of international crim-
inal law, i.e. the tension between coping with the past and shaping the future
that confronts any intervention by international criminal law in ‘post-conflict
situations’. Recent examples are South Africa and the Democratic Republic
of Congo.82

8. The Farben Trial as Evidence for the Differentiated

Treatment of Political and Industrial Elites
The ‘problem’ of the Farben trial, however, did not only consist in the fact that
the tough sentencing of German business leaders was no longer desired even
as the trial began. The Farben trial allowed a second ‘problem’ to emerge with
great clarity: the claim of representativity of the accused as elites of the Nazi
state, on the one hand, and the need to make them appear different as com-
pared to functionally comparable groups in other western industrialized socie-
ties, on the other. It was particularly ironical that the IG was closely

77 See Boll, supra note 12, at 133, 135; Wagner, supra note 9, at 299.
78 H. Wiggenhorn, Verliererjustiz: Die Leipzieger Kriegsverbrecherprozesse nach dem Ersten Weltkrieg
(Baden-Baden: Nomos Verlag, 2005).
79 Addressing the the argument of ‘victors’ justice’, see R. Merkel,‘The Law of the Nuremberg Trial:
Valid, Dubious, Outdated’, in G. Mettraux (ed.), Perspectives on the Nuremberg Trial (Oxford:
Oxford University Press, 2008) 555^576, at 570 et seq.; Bassiouni, supra note 75.
80 See e.g. Wagner, supra note 9, at 309; inter alia a reference is made to a comment of the
Presiding Judge: ‘We should be afraid of the Russians. It would not surprise me if they overran
the courtroom before we have finished here.’ quoted according to DuBois, supra note 22, at 95.
81 See also Hayes (Auschwitz), supra note 5, at 99, 116.
82 See in detail, Werle, supra note 61, marginal nos 204^218, citing further references.
800 JICJ 8 (2010), 783^802

intertwined with many US companies, including the most important oil

corporations.83
Here too, we discern a circumstance that has structurally characterized the
implementation of international criminal law to this day. We know that inter-
national criminal law always becomes a sharp-edged sword where this is per-
mitted by political conditions ç post-war Germany, Yugoslavia and Rwanda.
It may appear to be a basic condition for the intervention of international crim-
inal law that the system or regime to which the accused representatives be-
longed, has been ‘overtaken’ by history. System change is here often not just

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the conditio sine qua non for international criminal law to deal with the past; it
also bestows on the latter its political legitimization. This has been described
in detail in the broad context of debates surrounding ‘transitional justice’.84 In
the context of the Farben trial, we can add: As a rule it is the political and occa-
sionally also the military elites that are first ‘overtaken’. By contrast, industry
and business constitute a continuum in all societies, at least in such societies
that accept the basic ideas of international criminal law today. This is an obser-
vation that can perhaps explain why there is often no energy for a determined
legal ‘settling up’ in these cases.

9. The Farben Trial as Nucleus of a ‘White Collar

International Criminal Law’?
Can the findings of the Farben trial be fruitful for current international crim-
inal law? I think that the answer must turn out differently depending on
whether you approach the question from the angle of international criminal
law dogma or international criminal law politics.
From the standpoint of international criminal law doctrine, it would seem
that the findings of the Military Tribunal, as already indicated, were not very
instructive. Little can be said in concrete terms regarding the question as to
what preconditions justify liability for business action under international
criminal law. The questions on the table today, and which criminal lawyers
dealing with white collar crime will pose to the discipline of international
criminal law, are of another nature: here it is a matter of how to appraise colle-
giate decisions in terms of criminal law; it is also a matter of the preconditions
under which ‘neutral’ actions can underpin criminal law liability.85 These
topics and others discussed on the domestic level have not yet reached the
level of international criminal law86 ç and relevant new findings will most
likely not be found even from a retrospective view of the Farben trial.

83 See Boll, supra note 12, at 133, 134.

84 See Werle, supra note 61.
85 On the discussion about the responsibility of so-called neutral actions under criminal law, see
e.g. P. Rackow, Neutrale Handlungen als Problem des Strafrechts (Frankfurt a.M.: Peter Lang, 2007).
86 But see the considerations in ibid., at 483 et seq.; W. Schabas, ‘Enforcing International
Humanitarian Law’, 83 International Review of the Red Cross (2001) 439^459, at 439 et seq.;
 Origins of Individual Criminal Responsibility for Business Activity 801

By contrast, it appears to me that the Farben trial is more instructive from the
standpoint of international criminal law policy. First of all, it is to be noted
that the trial ç in conjunction with its associated trials against Flick and
Krupp ç was a first attempt to deal with business action through the instru-
ments of international criminal law. It is my view that a key merit of the
Farben trial was to have shifted this typical shade of macro-criminal wrong-
doing into the limelight. The Farben trial could thus have ç potentially ç
laid the foundations for a new economic international criminal law. However,
an analysis of recent practice shows that international courts, with admittedly

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good reasons, concentrate on prosecuting people who were (relatively) directly
involved in committing crimes under international law, in particular as mili-
tary or political officials. By contrast, the responsibility of corporations or
their staff for their involvement in international crimes has hitherto been at
most of marginal interest in international prosecution efforts, which also
applies to national courts.87
Not only non-governmental organizations regularly point out that economic
interests are an essential driving force for the commission of crimes under
international law. A notable declaration in this context was made also by the
chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo in
2003.88 Referring to the situation in the Democratic Republic of Congo, he
stated that clarifying the economic aspects of the alleged crimes was funda-
mental for preventing future crimes and prosecuting those already committed.
He was specifically referring to the activities of European and US companies
with close business ties in the civil-war-ridden Congo, inter alia with the aim
of exploiting natural resources, above all gold, diamonds and oil. The
Diamond Council in Antwerp estimates the value of illegal diamond exports
from the Democratic Republic of Congo at approximately E800 million a year.
Admittedly, Ocampo’s request to the signatory states of the Rome Statute to
pass on evidence of such illegal transactions to the International Criminal
Court has seemingly gone unheard ç at least no concrete investigations have
been undertaken so far.

10. Conclusion
In order to link up again with the initial quotation from the judgment, the IG
managers had a soft fall, so to say, from a place not far behind the ranks of

furthermore, K. Ambos, Der Allgemeine Teil des Vo«lkerstrafrechts: Ansa«tze einer Dogmatisierung
(2nd edn., Heidelberg: C.F. Mu«ller, 2004), at 619 et seq.
87 But see on a trial in the Netherlands, H. Van der Wilt, ‘Genocide, Complicity in Genocide and
International v. Domestic Jurisdiction: Reflections on the van Anraat Case’, 4 Journal of
International Criminal Justice (2006) 239^257, at 239 et seq.
88 See L. Moreno-Ocampo, ‘Communications Received by the Office of the Prosecutor of the ICC’,
available online at http://www.icc-cpi.int/NR/rdonlyres/9B5B8D79-C9C2-4515-906E-
125113CE6064/277680/16_july__english1.pdf (visited 10 May 2010), at 3, 4.
802 JICJ 8 (2010), 783^802

the Wehrmacht into the warm bosom of the western powers. Even though this
may sound strange in view of the convictions and prison sentences imposed,
there is no doubt that the accused escaped lightly and soon got back on their
feet ç not least in West Germany where the fact of having been sentenced
before a Nuremberg Tribunal was not seen as a stigma.
Independently of how one assesses the judgment in detail and whether one
shares the reasons advanced, in view of the circumstances, the Military
Tribunal did present an impressive document. From the angle of today’s
international criminal law, the value of the decision above all lies in

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having undertaken the attempt to highlight the responsibility of industry and
business through the instruments of international criminal law. And it seems
to me to be timely for the current practice of international criminal law, at
least in its academic form, to be reminded again of these origins of liability
for business action.