The Crime and Punishment of I.G. Farben

I.G. Loses the War

May 12, 1944, was a fateful day for Germany and for I.G. On that ay the United States Eighth Air Force sent 935 bombers over Germany to attack its synthetic oil industry; 200 bombers concentrated on I.G.’s Leuna plant alone. This attack marked the beginning of what the U.S. strategic bombing survey called “the Battle of Leuna,” classifying it as “one of the major battles of the war.” 1

The next day Albert Speer, Reich minister for armaments and war production, toured the wreckage of Leuna with Buetefisch. What he saw convinced him that “the technological war was decided.... It meant the end of German armament production.” 2 For Speer it was the turning point in the war. He immediately flew to Hitler’s headquarters at Obersalzburg to report on the extent and meaning of the disaster:

“The enemy has struck us at one of our weakest points,” he told the Fuehrer. “If they persist at it this time, we will soon have no fuel production worth mentioning. Our one hope is that the other side has an air force general staff as scatterbrained as ours!” 3

Hitler then summoned four of the top fuel experts from I.G., including Krauch and Buetefisch, for a discussion about the consequences of the May 12 air raid. Goering and Speer accompanied them to the meeting. Before the group went in to see Hitler, Speer advised the four fuel experts to tell “the unvarnished truth.” However, Goering insisted that they not be too pessimistic. “He was probably afraid that Hitler would place the blame for the debacle chiefly on him,” Speer wrote later. 4

Krauch was determined to follow Speer’s advice. He told Hitler that Germany’s position was hopeless if the enemy air raids on the synthetic oil plants continued. To support his grim forecast, he presented Hitler with an impressive array of facts and figures.

Goering, full of rage at what he regarded as gross insubordination, turned on Krauch in front of Hitler. The success of the Allied air raids was all Krauch’s fault, he fumed, since planning for air raid protection was Krauch’s responsibility. 5 By this time Goering had lost his influence with Hitler, who ignored his tirade against Krauch. For Hitler there was a more fundamental reason for the terrible effectiveness of the Allied air raids directed against the German productive centers: “In my view the fuel, Buna rubber and nitrogen plants represent a particularly sensitive point for the conduct of the war.” 6 Because of I.G.’s monopoly, these vital war materials were concentrated in too few plants. 7

But it was too late for Hitler to invoke a German Antitrust Act. The only thing to do was to try to put the plants back in operation as quickly as possible and then protect them with a heavy defensive air cover. Speer gave the restoration project the highest priority for men and materiel; 350,000 workers were assigned to the task of restoring German oil production. At Leuna the effort succeeded in bringing the facilities back to partial operation within ten days. But, on May 28, the Eighth Air Force resumed the battle of Leuna. The result was another crippling blow, which reduced German fuel production by half.

By now Goering acknowledged the seriousness of the situation. He promised Krauch and other German fuel experts that a significant part of Germany’s new aircraft production would be designated solely to protect the oil plants and would never be diverted to the front. 8 But the Allied invasion of the continent on June 6 forced Goering to renege on that promise. The planes and anti-aircraft guns promised by Goering to protect the oil plants were diverted to meet the more immediate danger. At the end of June, a desperate Speer wrote to Hitler for help.

Our aviation gasoline production was badly hit during May and June. The enemy has succeeded in increasing our losses of aviation gasoline up to 90 percent by June 22. Only through speedy recovery of damaged plants has it been possible to regain partly some of the terrible losses. In spite of this, however, aviation gasoline production is completely insufficient at this time.... If it is not possible for us to protect these plants we will be forced to curtail the flow of supplies to the Army in September, which will mean that from that time on there will be a terrible bottleneck which may lead to the most tragic consequences.... I regret having to inform my Fuehrer of these tragic developments and I beg you to issue all the necessary orders for this additional protection of these plants. 9

The course of the Battle of Leuna became the gauge for the state of German oil production. By early July the resourceful I.G. technicians were able to restore Leuna to seventy-five percent operating capacity. However, the Eighth Air Force returned on July 7, again bombing the plant to a halt. Two days later the plant started operating again and by July 19 had reached fifty-three percent of capacity. 10

And so the cycle of bombings and reconstruction continued. But the total effect on German fuel production was nothing less than catastrophic. Krauch concluded that the only way fuel installations could be rebuilt after each raid was to cannibalize other installations. Under this plan to prevent the total cessation of oil production, Germany’s productive capacity diminished with each recuperation. By September, oil production had dropped to fifteen percent, a condition from which Germany was never to recover. 11

The intensive bombing of Leuna led to a curious confrontation between Buetefisch, who was in charge of Leuna, and Paul Harteck, a leading nuclear scientist working on Germany’s atomic bomb project. Part of Leuna was devoted to the manufacture of heavy water, a necessary component of atomic energy. After the first bombs fell on Leuna, Buetefisch informed Harteck that the heavy water installation must be abandoned. He claimed that the massive bombing could not have been aimed at fuel production since there was a “gentlemen’s agreement” between heavy industry in Germany and abroad that I.G.’s synthetic gasoline plants would not be bombed. The only explanation for the raids against Leuna, therefore, was the heavy water facility. 12

Stories of such agreements between Allied and German concerns became part of the war’s mythology. Except for this extraordinary statement by Buetefisch, which was confirmed by Harteck, not a scintilla of credible evidence ever has been uncovered to support any of them. Moreover, the removal of the heavy water installation did not halt the Allied bombings, which continued until Leuna became inoperative.

At about the same time, Buetefisch had another, more personal concern. The Petroleum Times in its December 23, 1943 issue published in detail a lecture by Robert T. Haslam of Standard Oil. In the article, Haslam claimed that United States technical warfare would not have been effective if I.G. had not supplied Standard with valuable information before the war. In fact, said Haslam, the success of the U.S.S.R.’s military campaigns was the result of the “technical achievements” the Soviet Union gained from I.G. via Standard. 13

Buetefisch, who had been personally charged by General Thomas with the responsibility for seeing that there were no leaks of technical information to Standard, was terrified by the Petroleum Times article. He took the matter up with Knieriem, apparently the most level-headed person still in I.G. Knieriem immediately realized that “this was a dangerous situation and we had to recognize the possibility that we might be attacked for treason.” 14

This would never have been a pleasant contemplation at any time in Nazi Germany, but during the Allied bombings it had awesome implications. “Imagine,” said Knieriem, “the situation of a German firm in 1944 before the People’s Court.” 15

As quickly as possible the I.G. executives prepared a point-by-point refutation of Haslam’s lecture in the event the German government delved into the matter. But the Nazis were preoccupied with other troubles, and no such inquiry was ever undertaken. Had the Nazis learned of Haslam’s defense of the Standard-I.G. agreements, Buetefisch, Ter Meer, and probably other I.G. officials might conceivably have been placed in the most serious jeopardy.

By the fall of 1944, the German military situation had become so desperate that Bormann, Goebbels, and Ley—three of the most dedicated and ruthless Nazis in the Third Reich—began to pressure Hitler to attack enemy strongholds and cities with Tabun, a nerve gas so deadly that a drop on the skin killed a victim in minutes by attacking the nervous system. 16 Tabun, as well as Sarin, a companion nerve gas, had been discovered during I.G. research and development on pesticides and became one of Germany’s most closely guarded military secrets, referred to in documents only by the code name “N-Stoff.”

This was not the first time this trio had pleaded with Hitler to employ I.G.’s Tabun against the enemy. In May 1943, after the debacle of Stalingrad, they had urged its use on the Russian front. At that time Hitler called a conference at his headquarters in East Prussia to weigh this proposal. Speer, who was strongly opposed to the introduction of Tabun, flew Otto Ambros, I.G.’s authority on poison gas as well as synthetic rubber, to the meeting. Hitler asked Ambros, “What is the other side doing about poison gas?” 17

Ambros explained that the enemy, because of its greater access to ethylene, probably had a greater capacity to produce mustard gas than Germany did. Hitler interrupted to explain that he was not referring to traditional poison gases:

“I understand that the countries with petroleum are in a position to make more [mustard gas], but Germany has a special gas, Tabun. In this we have a monopoly in Germany.” 18

He specifically wanted to know whether the enemy had access to such a gas and what it was doing in this area. To Hitler’s disappointment Ambros replied,

“I have justified reasons to assume that Tabun, too, is known abroad. I know that Tabun was publicized as early as 1902, that Sarin was patented, and that these substances appeared in patents.” 19

Ambros was informing Hitler of an extraordinary fact about one of Germany’s most secret weapons. The essential nature of Tabun and Sarin had already been disclosed in the technical journals as far back as 1902, and I.G. had patented both products in 1937 and 1938.

Ambros then warned Hitler that if Germany used Tabun, it must face the possibility that the Allies could produce this gas in much larger quantities. 20 Upon receiving this discouraging report, Hitler abruptly left the meeting. The nerve gases would not be used, for the time being at least, although they would continue to be produced and tested.* 21

* Guinea pigs and white rats, animals traditionally used for testing purposes, were deemed inadequate for measuring the effect of the nerve gases on humans. Early in the war, it was decided to substitute apes, whose biological reactions to such gases were believed to be more like those of human beings. However, apes were not readily available in Germany, and Speer’s office supplied 200,000 Swiss francs, a precious foreign currency, to buy them in Spain. They were transported to Germany with great difficulty; many died before the experiments were concluded (TWC I, p. 351, Brandt Document Book 12, Defense Exhibit 11). Eventually it was decided to experiment on concentration camp Jews.

It is suspected that the testing of I.G.’s poison gases on humans was known in the highest echelons of I.G. After the war, Georg von Schnitzler swore that Ambros, Schmitz, and Ter Meer were aware of these activities. According to British intelligence, one of them was reported to have “justified the experiments not only on the grounds that the inmates of concentration camps would have been killed anyway by the Nazis, but also on the grounds that the experiments had a humanitarian aspect in that the lives of countless German workers were saved thereby” (Hearings before a Subcommittee of the Committee on Military Affairs, U.S. Senate, 79th Congress, 1st Session (1945), pursuant to S. Res. 107 and 146, Elimination of German Resources for War, part X, p. 1276).

However, Hitler did not give up his interest in such a weapon entirely. After the Allied invasion of the continent in June 1944, Hitler became disenchanted with Army Ordnance tests of “N-Stoff.” He informed Speer that he intended to transfer the “responsibility for the production and tests of N-Stoff to the S.S.” 22

Speer objected, apparently shocked by the award of such decisive power to the S.S. Moreover, I.G. was too important to the program to be removed at this time. Speer convinced Hitler to limit the S.S. authority to testing the nerve gas while permitting I.G. to retain control over production and development. 23

Hitler was persuaded and issued an order to this effect. On July 7, 1944, Speer received a teletype message from General Keitel:

The Fuehrer has ordered that the Reichsfuehrer S.S. [Himmler] immediately continue experiments with “N Stoff.”. . . To this end, the Army Ordnance Office will immediately submit to the Reichsfuehrer S.S. all reference material and know-how gathered up to now about “N Stoff” and will support him in his endeavors with all possible means. 24

After the issuance of Hitler’s order, Speer sought to clarify his position in a letter to Himmler. It would be a mistake, explained Speer, for the S.S. to take over the production of N-Stoff when, after all, only I.G. had the qualified specialists. Speer regretted that no competitive firm to I.G. Farben had been established within the framework of the four-year plan when it could easily have been done:

“Nowadays we are entirely dependent on the work of I.G. Farben for chemical progress.” 25

Himmler, apparently satisfied, replied that the S.S. would devote all its energy to the testing of N-Stoff and leave production to I.G. 26

When the suggestion to use Tabun was made again in the fall of 1944, Hitler was still concerned about retaliation. He inquired once again of Speer about the possibility that the enemy possessed an equivalent weapon. Speer checked with Ambros and was told that nothing had changed and no defense against the nerve gas had been developed.

Hitler again forbade its use. 27

Ambros’s estimate of the Allies’ chemical warfare capability proved wrong. The Allies had nothing comparable to I.G.’s nerve gases with which to retaliate. It is terrifying to speculate on the holocaust that would have resulted had Hitler known this and ordered a massive nerve gas attack on London, Moscow, or Washington. Or worse, Hitler might have found the weapon to win the war.

The subject of Tabun surfaced for one more brief moment before the war was over. In order to end the war more quickly, Speer conceived the idea in February 1945 of using the gas to kill Hitler. 28 He planned to induce Tabun into the ventilating system of the Chancellery bunker. But the technical problems proved insuperable, and Speer abandoned the scheme. The war continued for another three months. On May 8, 1945, Germany surrendered unconditionally. By August war crimes trials were being organized, and by November the first of the trials against the major war criminals had begun.

I.G. officials acted as though they had a premonition of what the future had in store. As early as September 1944 Ter Meer and Ernst Struss, secretary of the managing board, were planning for the destruction of the files of I.G. in the event that the American forces occupied Frankfurt. The next spring, when Frankfurt was about to fall to the American army, a massive burning and shredding of files was undertaken—some fifteen tons of paper.

Most of the records at Auschwitz were also destroyed before the Soviet army arrived. When the Allies began to try to piece together the I.G. record from the Nazi period, there were enormous gaps. More than one observer has suggested that I.G.’s record would have been far more incriminating had these files been available. What remained for the Allies to capture was horrible enough.

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I.G. at Nuremberg

In August 8, 1945, the representatives of the governments of the United States, Great Britain, the Soviet Union, and France met in London to establish an International Military Tribunal to try the war criminals of Germany. 1 Prominent jurists from the four major powers were selected to serve as judges and a committee of chief prosecutors was appointed to draft an indictment.

On October 6, the formal indictment was completed and filed with the International Military Tribunal. 2 Indicted were the leaders of Nazi Germany still alive. They were charged with three basic war crimes: planning, preparing, and waging aggressive war; plunder and spoliation of the property of conquered countries; and slavery and mass murder.

It had been planned to include among those indicted a prominent industrialist who typified the complicity of German business in Hitler’s programs. Gustav Krupp von Bohlen und Halbach, head of the Krupp steelworks, was chosen to fill this role. Although I.G. had been far more important to Germany’s military-economic war preparations, Krupp was the individual most associated by reputation with the war-making power of Germany.

When James H. Rowe, Jr., a prominent American lawyer representing the International Military Tribunal, tried to serve the indictment upon the steel baron, he discovered that the aged Krupp was mentally and physically unable to defend himself. 3
It was agreed that he would therefore have to be dropped as a defendant. The chief prosecutors, determined to include a German industrialist among the major war criminals, filed a motion to substitute Gustav Krupp’s son Alfried.

The motion was denied by the Tribunal, 4 and the trial began on November 20, 1946, without an industrialist as a defendant.* To assuage public opinion in the Allied countries, the French and British issued a joint declaration that in the future a number of leading German industrialists would be indicted as war criminals and tried before another International Military Tribunal. 5

* At the conclusion of this trial on August 31, 1946, the following were sentenced to death:
Hermann Goering, Joachim von Ribbentrop, Wilhelm Keitel, Alfred Rosenberg, Ernst Kaltenbrunner, Hans Frank, Wilhelm Frick, Julius Streicher, Fritz Sauckel, Alfred Jodl, Arthur von Seyss-Inquart, and Martin Bormann (in absentia). 6 All were hung except Goering, who committed suicide on the morning of the executions, and Bormann, who was never apprehended. 17 Rudolf Hess, Walter Funk, and Erich Raeder were sentenced to life imprisonment. Albert Speer and Baldur von Schirach received twenty years’ imprisonment; 8 Konstantin von Neurath, fifteen years; and Karl Doenitz, ten years. Hjalmar Schacht, Franz von Papen, and Hans Fritsche were acquitted on all counts. 9 On April 5, 1946, with the trial nearing its end, the committee of chief prosecutors revived the plan to try a number of leading German industrialists before a second International Military Tribunal. 10 It was agreed that the list of the industrialist defendants must be held to a manageable number, preferably six but not to exceed eight.

That Alfried Krupp was to be one of these defendants was a certainty. As it turned out, only four other industrialists were selected. The United States nominated Hermann Schmitz and Georg von Schnitzler of I.G. Farben. The French chose Hermann Roechling, the coal and steel magnate of the Saar. (Roechling’s trial was to be a repeat performance: a quarter of a century earlier, after World War I, he had been tried and convicted as a war criminal in absentia by the French.) The British nominated Kurt von Schroeder, the Cologne banker. The Russians reserved the right to designate two defendants but never did so.

However, the plans for conducting a second trial before an International Military Tribunal collapsed. The experiences of the trial of the major war criminals convinced the prosecutors that a court made up of the four Allied powers was too unwieldy. Instead, a trial of industrial war criminals was to be left to each of the Allies in its own occupation zone of Germany. 11 The United States proved the most energetic of the Allies in this connection and promptly initiated plans to proceed with a series of war crimes trials against the leading executives of the I.G., Krupp, and Flick concerns. 12

Judges were recruited from the state and federal judiciaries and from the faculties of law schools to preside over the trials. Staffs were organized to collect facts, draft indictments, and generally make the necessary preparations for the trials.

The chief of the prosecution staff for the I.G. case was Josiah E. Du-Bois, Jr., a deputy to Brigadier General Telford E. Taylor, who succeeded Justice Jackson as chief U.S. provost of the war crimes trials. After months of gathering evidence, examining witnesses, and organizing thousands of documents, the prosecution staff filed an indictment on May 3, 1947, on behalf of the United States. 13

Twenty-four I.G. executives were indicted:

Carl Krauch as chairman of I.G.’s supervisory board
Hermann Schmitz as chairman of the I.G. managing board
all the other members of this board (Georg von Schnitzler, Fritz Gajewski, Heinrich Hoerlein, August von Knieriem, Fritz ter Meer, Christian Schneider, Otto Ambros, Max Brueggemann, Ernst Buergin, Heinrich Buetefisch, Paul Haefliger, Max Ilgner, Friedrich Jaehne, Hans Kuehne, Carl Lautenschlaeger, Wilhelm Mann, Heinrich Oster, and Karl Wurster)
four other important I.G. officials (Walter Duerrfeld, Heinrich Gattineau, Erich von der Heyde, and Hans Kugler)

The indictment, a document of over sixty pages, consisted of five separate counts into which was poured the record of I.G.’s involvement with the Nazi machine. The major counts were “Planning, Preparation, Initiation and Waging of Wars of Aggression and Invasions of Other Countries”; “Plunder and Spoliation”; and “Slavery and Mass Murder.”

Under the aggressive warfare count, the indictment listed a wide range of offenses:

alliance of I.G. with Hitler and the Nazi party
synchronization of all I.G.’s activities with the military planning of the German High Command
participation in the four-year plan preparations and direction of Germany’s economic mobilization for war
participation in creating and equipping the Nazi military machine for aggressive war
procuring and stockpiling critical war materials for the Nazi offensive
participation in weakening Germany’s potential enemies
carrying on propaganda, intelligence, and espionage activities
preparation for and participation in the planning and execution of Nazi aggressions and reaping of spoils therefrom
participation in plunder, spoliation, slavery, and mass murder as part of the invasions and wars of aggression.

In the plunder and spoliation count, the indictment charged that “I.G. marched with the Wehrmacht and played a major role” in Germany’s program for acquisition by conquest:

“To that end, it conceived, initiated, and prepared detailed plans for the acquisition by it, with the aid of the German military force, of the chemical industries of Austria, Czechoslovakia, Poland, Norway, France, Russia, and other countries.”

The charge of slavery and mass murder was the crucial count in the indictment, without which it is even doubtful that there would have been any war crimes trial at all. All of the defendants, acting through the instrumentality of I.G. . . participated in... the enslavement of concentration camp inmates... the use of prisoners of war in war operations... and the mistreatment, terrorization, torture, and murder of enslaved persons. In the course of these activities, millions of persons were uprooted from their homes, deported, enslaved, ill-treated, terrorized, tortured, and murdered.

In effect the indictment was a catalogue of Nazi inhumanities in which the I.G. defendants played a part, particularly in the most notorious of all extermination centers, Auschwitz.

Farben, in complete defiance of all decency and human considerations, abused its slave workers by subjecting them, among other things, to excessively long, arduous, and exhausting work, utterly disregarding their health or physical condition. The sole criterion of the right to live or die was the production efficiency of said inmates.

By virtue of inadequate rest, inadequate food (which was given to the inmates while in bed at the barracks), and because of inadequate quarters (which consisted of a bed of polluted straw, shared by from two to four inmates), many died at their work or collapsed from serious illness there contracted.

With the first signs of a decline in the production of any such workers, although caused by illness or exhaustion, such workers would be subjected to the well-known “Selektion.” “Selektion,” in its simplest definition, meant that if, upon a cursory examination, it appeared that the inmate would not be restored within a few days to full productive capacity, he was considered expendable and was sent to the “Birkenau” camp of Auschwitz for the customary extermination. The meaning of “Selektion” and “Birkenau” was known to everyone at Auschwitz and became a matter of common knowledge.

The working conditions at the Farben Buna plant were so severe and unendurable that very often inmates were driven to suicide by either dashing through the guards and provoking death by rifle shot, or hurling themselves into the high-tension electrically-charged barbed wire fences. As a result of these conditions, the labor turnover in the Buna plant in one year amounted to at least 300 percent.

Besides those who were exterminated and committed suicide, up to and sometimes over 100 persons died at their work every day from sheer exhaustion. All depletions occasioned by extermination and other means of death were balanced by replacement with new inmates. Thus, Farben secured a continuous supply of fresh inmates in order to maintain full production.

Farben’s conduct at Auschwitz can be best described by a remark of Hitler [sic; should be Himmler]:

“What does it matter to us? Look away if it makes you sick.” 14

The possible verdicts ranged from acquittal to death.

From the outset the legality of the war crimes trials had been challenged by a number of legal scholars and politicians who contended that such trials represented victors’ justice. Among the most prominent of those who joined in the debate were Chief Justice Harlan F. Stone, Justice William O. Douglas, and Senator Robert A. Taft.

Justice Douglas wrote,

No matter how many books are written or briefs filed, no matter how finely the lawyers analyzed it, the crime for which the Nazis were tried had never been formalized as a crime with the definiteness required by our legal standards, nor outlawed with a death penalty by the international community. By our standards that crime arose under an ex post facto law. Goering et al. deserved severe punishment. But their guilt did not justify us in substituting power for principle. 15

Chief Justice Stone was even more emphatic. In a private letter, he wrote,

“Jackson is away conducting his high-grade lynching party at Nuremberg. I don’t mind what he is doing to the Nazis, but I hate to see the pretense that he is running a court and proceedings according to common law.” 16

Senator Taft said,

“In these trials we have accepted the Russian idea of the purpose of trials—government policy and not justice—with little relation to Anglo-Saxon heritage. By clothing policy in the forms of legal procedure, we may discredit the whole idea of justice in Europe for years to come.” 17

By the time the prosecution of the I.G. officials began in 1947, a new element had been added to the objections to war crimes trials. The cold war had begun. Germany, the wartime enemy, had become a sought after ally; the U.S.S.R., the former ally, was now regarded as the enemy. Congressman John E. Rankin of Mississippi declared on the floor of the House of Representatives:

What is taking place in Nuremberg, Germany, is a disgrace to the United States. Every other country now has washed its hands and withdrawn from this saturnalia of persecution. But a racial minority, two and a half years after the war closed, are in Nuremberg not only hanging German soldiers but trying German businessmen in the name of the United States. 18

Representative George A. Dondero of Michigan continued the attack in the House, charging that ten communist sympathizers had infiltrated key positions in the American military government in Germany. He specifically attacked Josiah DuBois, the deputy chief counsel of the prosecution staff in the I.G. case, as a “known left-winger from the Treasury Department who has been a close student of the Communist Party line.” 19

DuBois challenged Dondero to repeat his charges off the floor of Congress so that he would not be immune from a libel suit, but Dondero refused to do so. 20 The trial opened on schedule on August 27, 1947, in the Palace of Justice at Nuremberg. Selected as judges to conduct the trial were Curtis Grover Shake, formerly a judge of the Supreme Court of Indiana, who was to preside; James Morris, justice of the Supreme Court of North Dakota; and Paul M. Hebert, dean of the Law School of Louisiana State University. Clarence F. Merrell, an Indiana lawyer who was a friend of Judge Shake’s, was to serve as alternate judge. 21

The large courtroom was filled to capacity. Members of the public occupied all 300 seats allocated to them and the press section was filled to overflow. The twenty-three defendants (Brueggemann was declared too ill to stand trial) were attended by more than sixty lawyers, among the best of the German bar, and another twenty accountants and other specialists. The prosecution staff consisted of a dozen lawyers and experts. There were also clerks, stenographers, police, and military guards, as well as technicians and simultaneous translators required to make an electronic, bilingual trial possible.

General Telford Taylor set the tone of the prosecution’s case in his opening statement.

The indictment accuses these men of major responsibility for visiting upon mankind the most searing and catastrophic war in human history. It accuses them of wholesale enslavement, plunder, and murder. These are terrible charges; no man should underwrite them frivolously or vengefully...

The defendants will, no doubt, tell us that they were merely over-zealous, and possibly misguided patriots. We will hear it said that all they planned to do was what any patriotic businessman would have done under similar circumstances.... As for the carnage of war and the slaughter of innocents, these were the regrettable deeds of Hitler and the Nazis, to whose dictatorship they, too, were subject. 22

Taylor correctly divined one of the main defense strategies—to make the defendants out to be ordinary businessmen like those the world over. However, the way the prosecution began to develop the case seemed to play into the hands of the defense. The prosecution introduced organizational charts, cartel agreements, patent licenses, correspondence, production schedules, and corporate reports, as is done in antitrust cases, not at a trial of war criminals charged with mass murder. Judge Morris finally voiced his irritation with the proceedings.

Mr. Prosecutor, this organization, so far as records show here, was simply a big chemical, commercial and business concern, the like of which there are many throughout the world.... I am at a complete loss to comprehend where documents of this kind are of the slightest materiality to the charges. 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. 23

Emanuel Minskoff of the prosecution staff appealed to his chief, Josiah DuBois, to change the order and direction of the prosecution case. It would have been more effective, he argued, to have opened with the charge of slavery and mass murder: “We should have started with Auschwitz on the first day.” Because the prosecution failed to do so, “the court just can’t believe these are the kind of men who would be guilty of aggressive war.” DuBois replied that it was too late to adopt such an approach. Minskoff persevered, “But I still say you should argue Auschwitz; then they will see what kind of men they are trying and they’ll understand the rest of it.” 24

It was too late to adopt Minskoff’s recommendation, much as DuBois would have liked to. The trial moved along according to the sequence of the counts in the indictment.

It was not until the prosecution staff reached the charge of slavery and mass murder that the critical point of the trial was reached. No longer did the procedures resemble those of an antitrust suit. The prosecution, in order to support these charges, introduced scores of eyewitnesses who had been in I.G. Auschwitz, including prisoners of war, Jewish and foreign inmates, physicians, and I.G. officials troubled by conscience, all of whom told stories that were incredible but still had the ring of truth.

An effective prosecution witness was Norbert Jaehne, the son of defendant Friedrich Jaehne, and a certified engineer at I.G. Auschwitz from January 1943 to the end of the war. The elder Jaehne had made several trips to visit his son at the camp. Norbert Jaehne’s position at I.G. Auschwitz and his blood relationship with a defendant gave added force to his description of what went on at Auschwitz.

Of all the people employed in I.G. Auschwitz, the inmates received the worst treatment. They were beaten by the Capos, who in their turn had to see to it that the amount of work prescribed them and their detachments by the I.G. foremen was carried out, because they otherwise were punished by being beaten in the evening in the Monowitz camp.

A general driving system prevailed on the I.G. construction site, so that one cannot say that the Capos alone were to blame. The Capos drove the inmates in their detachments exceedingly hard, in self-defense, so to speak, and did not shrink from using any means of increasing the work of the inmates, just so long as the amount of work required was done. 25

Hardly less compelling was the testimony of the secretary of the I.G. managing board, Ernst A. Struss, who had visited I.G. Auschwitz several times.

COUNSEL: “The chief engineer of the Buna plant with whom you spoke in 1943, did he specifically tell you that people were being burned at Auschwitz?”

STRUSS: “Yes, I think he also told me that before the burning, they were gassed. ...”

COUNSEL: “And in the summer of 1943 you knew that people were being burned and gassed?”
STRUSS: “Yes.”
COUNSEL: “And to your best recollection you told that to Ambros and TerMeer?”
STRUSS: “Yes.” 26

Through former Auschwitz inmates, the prosecution presented a graphic picture of conditions at I.G. Auschwitz and Monowitz. Typical was the testimony of Robert Elie Waitz, a professor at the University of Strasbourg, an inmate who was also a physician with an international reputation. He worked in the Monowitz hospital and, because of his renown and demeanor, was a forceful witness.

I found out very soon that Monowitz was an extermination camp. On account of the severe living conditions, the prisoners were exposed to that slow process of physical and mental dissolution which terminated in most cases in the gas chambers. The final aim was unmistakable: the dehumanization and eventual extermination of the prisoners employed in the I.G. plant at Auschwitz. I heard an S.S. officer in Monowitz saying to the prisoners, “You are all condemned to die, but the execution of your sentence will take a little while.”

Until that time the S.S. and I.G. in common exploited the prisoners beyond what they could bear. 27 From witness Rudolf Vitek, also both a physician and an inmate, came the following appraisal:

The prisoners were pushed in their work by the Capos, foremen, and overseers of the I.G. in an inhuman way. No mercy was shown. Thrashings, ill-treatment of the worst kind, even direct killings were the fashion. The murderous working speed was responsible for the fact that while working many prisoners suddenly stretched out flat, turned blue, gasped for breath and died like beasts....

It was no rare occurrence that detachments of 400 to 500 men brought back with them in the evening five to twenty corpses. The dead were brought to the place of rollcall and counted as being present. 28

A Czechoslovakian inmate swore that,

The directors of I.G. Farben knew about the selections.... The employees of I.G. Farben indirectly occasioned the selections.... The master craftsmen complained to the management. . . and from there the complaints were forwarded to the management, Dr. Duerrfeld. and from there to the S.S. Consequently, the Labor Allocation Officer in Auschwitz went to Monowitz early in the morning, when the squads left for work, posted himself near the gate and picked out those people... whom they considered sickly; these people were sent to the gas chambers straight away. Those written complaints came from I.G. I myself have seen such reports. 28

Very dramatic was the appearance for the prosecution of a group of British prisoners of war. Their testimony was especially impressive.

The condition of the concentration camp inmates was deplorable. I used to see them being carried back at night, dead from exposure, hunger, or exhaustion. The concentration camp inmates did heavy manual labor, such as carrying steel girders, pipes, cables, bricks, and sacks of cement weighing about 100 lbs. As a rule the inmates weighed less than the cement sacks. I have seen the inmates shuffle, trying to make it in double time, but unable to do it, and I have seen them collapse.

. . . We would see the chaps hanging up in the gate of Lager IV, and the prisoners had to walk underneath them. I saw those bodies myself; working parties passed under the gate while walking to work. 30 Cross-examination did not help the defendants’ cause.

Q. “Did you see personally how prisoners were hanged in camp IV [Monowitz] ?”
A. “I saw three men hanging in the gate of camp IV approximately in February 1944.”
Q. “Do you know why these prisoners were hanged?”
A. “I didn’t know there had to be a reason.” 31

Another British prisoner of war testified:

I was at Auschwitz nearly every day. The population at Auschwitz was fully aware that people were being gassed and burned. On one occasion they complained about the stench of burning bodies. Of course, all of the Farben people knew what was going on. Nobody could live in Auschwitz and work in the plant, or even come down to the plant without knowing what was common knowledge to everybody. 32

In an attempt to overcome the deadly impact of the prosecution’s witnesses, the defense introduced into evidence some 386 affidavits. The prosecution challenged fifteen of them, which came from former inmates of Monowitz and I.G. Auschwitz. They were called as witnesses for cross-examination by Emanuel Minskoff of the prosecution staff. He was unusually successful in breaking down the credibility of the witnesses. One example reflects the general atmosphere Minskoff was able to create.

Q. “Now, Mr. Witness, isn’t it a fact that during the winter days as many as twenty inmates at a time were carried away from the Farben site back into Monowitz because they couldn’t walk by themselves any more?”
A. “Yes.”
Q. “And could you say what the average weight of the inmates would be?”
A. “100 to 120 pounds.”
Q. “Now, Mr. Witness, is it not a fact that the I.G. Farben foremen used to write evaluation sheets each night?”
A. “Yes.”
Q. “And isn’t it also true that if the Farben foremen reported the battalion under 70 per cent, the inmates would be punished with twenty-five strokes each?” A. “If he reported it—yes, that is true.”
Q. “And wasn’t the whipping post at Monowitz?”
A. “I don’t know that.”
Q. “Mr. Witness, you speak of there being no instruments of torture at Monowitz. Now isn’t it a fact that there was a standing cell in Monowitz?”
A. “Yes.”
Q. “Were there gallows in Monowitz?”
A. “Yes.”
Q. “And didn’t you often pass those gallows when an inmate had been hanged?”
A. “Unfortunately.”
Q. “Now, Mr. Witness, you state at the end of your affidavit that you survived I.G. Auschwitz for three years. Isn’t it a fact that you were what was known as an ‘old inmate,’ and that because of that and particularly because of the fact that you were aryanized while you were at the camp, you were in a completely different position from the other inmates?”
A. “That is correct.” 33

When Minskoff concluded, the witness was a broken man, crying uncontrollably. A major point in the defense strategy to counteract such damaging testimony was the introduction of affidavits detailing the efforts of the I.G. defendants to protect Jewish employees from the Nazis.

Especially interesting in this connection were the attempts to protect Carl and Arthur von Weinberg. Affidavits from Richard von Szilvignyi, the son-in-law of Carl von Weinberg, and Count Rudolf von Spreti, son-in-law of Arthur von Weinberg, established that Schmitz, Krauch, Schnitzler, and Ter Meer attempted to save the Weinbergs from the Nazis. Schmitz, for example, supplied Spreti with money to pay a large sum to a high Nazi official so that Arthur von Weinberg would not have to wear the yellow “Jewish star.” When Weinberg was later arrested and incarcerated in the dreaded concentration camp at Theresienstadt, Schmitz and Krauch intervened with Himmler.

An agreement was reached for Weinberg’s release, subject to two relatively minor conditions: that he live with his only daughter, Princess Charlotte Lobkowicz, at Serrahn for the rest of his life and that this arrangement be approved by the local Gauleiter of Mecklenburg. However, before the approval of the Gauleiter of Mecklenburg could be secured, Weinberg died. Weakened by hunger, he failed to survive a gall bladder operation. 34

Carl von Weinberg was more fortunate than his brother. With the aid of I.G. officials, he fled to Italy, where he was supported by payments from an I.G.-controlled company in Milan. All during the Nazi regime, he received his I.G. pension of 80,000 Reichsmarks, at great risk to the top members of the I.G. hierarchy who approved this payment. 35 Testimony and affidavits from Jewish witnesses, however, did not always achieve the desired effect.

Gerhard Ollendorff, a retired deputy member of the I.G. managing board, supplied an affidavit on behalf of defendant Fritz Gajewski. Ollendorff had been arrested in February 1939 during what he thought was a Nazi roundup of Jews. Gajewski went immediately to the chief of the Gestapo of the area and succeeded in effecting Ollendorff’s release. In Ollendorff’s affidavit, he recounted this event and added other information to show Gajewski’s anti-Nazi sentiments and his help to Jewish employees.

The cross-examination of Gajewski by Morris Amchan of the prosecution staff, however, cast a different light on his relationship to Ollendorff’s arrest.

Q. “Now, Dr. Gajewski, is it not a fact that when your colleague of the [I.G. managing board], Dr. Ollendorff, came to you as a friend and told you very confidentially that because of his Jewish ancestry, he was going to emigrate from Germany, having told you that in confidence, that you thereupon informed the Gestapo to arrest him and search his house—is that not a fact?”

A. “No. May I explain that? It was like this. Dr. Ollendorff did not tell me that in confidence. It was generally known that he was going to emigrate. I talked to... Bosch about it. He said to me, ‘Be careful. See to it that no “know-how” gets into other countries in this way or you will be in trouble.’ We said, ‘There has to be a search of Dr Ollendorff’s house, so that we are safeguarded in that respect.’ That was all we did.”

Q. “Now I show you [a document] and I ask you whether that does not refresh your recollection that on the same day when Ollendorff told you that he was going to emigrate from Germany, you wrote the Gestapo and told them to arrest the man and search his house? Does that refresh your recollection?” 36

Amchan then handed the witness a letter that Gajewski had written to the Gestapo about Ollendorff.

Dr. Ollendorff has informed the Reich Office for Economic Development that he intends to go abroad. We wish to inform you that according to our interpretation Dr. Ollendorff has knowledge of secret matters and that, therefore, it would serve the general interest of the economy not to permit Dr. 0. to go abroad for the time being. Since Dr. Ollendorff may still be in possession of papers, we would consider it advisable to have his home searched as a precautionary measure and any documents sent to us for study and analysis. We request that this matter be treated in absolute confidence.
Heil Hitler! 37

Q. “One more question. Did you ever tell Ollendorff that you reported him to the Gestapo and ordered his arrest?”
A. “No, I didn’t.” 38

Another relatively unsuccessful ploy of the defense was the attempt to show a lack of knowledge by the defendants of what I.G. Auschwitz really was. The prosecution had demonstrated that in the three and a half years of Auschwitz’s existence Ambros visited the compound eighteen times, Buetefisch seven, Jaehne twice, Ter Meer twice, and Krauch, Knieriem, and Schneider once each.

Duerrfeld lived on the site during its entire existence. In addition, both the I.G. managing board and the technical committee were supplied with complete reports on the amount, character, and disposition of the various types of labor in I.G. Auschwitz and I.G. plants in Germany where slave labor was also used. These figures were reduced to multicolored charts and hung in the appropriate meeting room.

Beginning in 1941, as the problem of labor supply became more acute, new classifications began to appear on the charts. The I.G. leaders were now aware that more than half I.G.’s “employees” were prisoners of war, foreign loan workers, convicts of the Wehrmacht, and concentration camp inmates. In the face of such evidence, the testimony of the defendants that the facts of the slave labor program and the atrocities of Auschwitz were unknown to them was hardly credible.

Anyone visiting Auschwitz could not doubt its true function as an extermination center. The smell of death poured from its chimneys and polluted the atmosphere for miles around. Attempts to describe conditions as clean and good were palpably ridiculous.

A much more effective legal strategy was the “defense of necessity.” The defense emphasized the compulsion under which German industrialists performed during the Nazi period. So far-reaching were the Reich’s regulations and so stringent was their enforcement that refusal to comply exposed an industrialist to imprisonment and even death. Under the duress of the Nazi terror, the defendants committed some of the acts charged in the indictment. In order to survive, it became necessary to obey even the most hideous demands of the Hitler government; hence the phrase “defense of necessity.” 39

The defense called two important witnesses in this connection. Field Marshal Erhard Milch, who himself had been convicted and sentenced to life imprisonment for participation in Germany’s slave labor program, was asked what the consequences would have been if a German businessman had refused to employ concentration camp inmates or prisoners of war allocated to him for war production. Milch replied that he would have been put under arrest immediately and would have faced the People’s Court for “undermining the fighting spirit”—“That was a very well known and dreaded paragraph. It normally led to the death sentence.” 40

The other witness who testified about the “defense of necessity” was Friedrich Flick, head of the Flick concern, who had been convicted and sentenced to seven years’ imprisonment for slave labor, plunder and spoliation, and membership in the S.S. Counsel for defendant Schnitzler asked whether a prominent industrialist could have refused to attend the February 1933 meeting that Goering had called to raise election funds for the Nazis and that Schnitzler had attended.

A. “He could do that, if he did not consider the consequences, but naturally, he would have regretted it.” 41

Some of the judges were impressed by the attempt of the defense to equate the I.G. defendants with their industrial counterparts in the United States and other countries as God-fearing, decent, and vigorously opposed to communism. This tactic proved most effective: “Replace I.G. by I.C.I. [Imperial Chemical Industries] for England, or Du Pont for America, or Montecatini for Italy,” said Krauch’s lawyer to the court, “and at once the similarity will become clear to you.” 42

Essentially, the defendants were peacetime businessmen and the transformation of their activities into the defense effort of their country should not be interpreted as participation in the preparation for, or the waging of, aggressive war.

The prevailing atmosphere of the cold war, reflected in the remarks and attitudes of some of the judges, was put to advantage by the defense counsel. To explain away the evidence of their clients’ enthusiastic endorsement and participation in Nazi policies and practices, they cited Hitler’s opposition to communism. Krauch’s counsel especially hammered the theme that his client, like any good American businessman, feared the expansion of the communist threat.

Hitler’s speeches on foreign policy made a deep impression on him. Through all these speeches “like a red thread runs the profession of the love of peace” and the “fear of the Bolshevist danger.” Then, appealing to the passions of the cold war, incredible as it may seem, Krauch’s counsel cited Hitler approvingly as a prophet. “How right Hitler was in this outline of his policy... might be confirmed by the political situation which has developed in recent months in Europe.” 43

This sounded a grimly revealing note upon which to rest the defense of the “Father of I.G. Auschwitz.”

The trial finally ended on May 12, 1948, after having exhausted all concerned in 152 trial days. There had been 189 witnesses. The transcript was almost 16,000 pages long. Over 6000 documents and 2800 affidavits had been introduced into evidence.44 In addition, there had been a multitude of briefs, motions, rulings, and other legal instruments incidental to such a proceeding.

An intellectually divided and emotionally drained court faced the task of carving from the huge record a legally valid and historically meaningful decision. On July 29, 1948, almost a year after the trial began, the court convened to read its opinion, render its verdict, and sentence the guilty. Judge Hebert, apparently supported by Alternate Judge Merrell, requested from Judges Shake and Morris additional time to complete and file both a concurrent and a dissenting opinion. This was denied. Before proceeding with the main business of the court, Presiding Judge Shake referred to a matter that had been reported in the newspapers that morning.

A mysterious explosion had destroyed the high-pressure hydrogenation plant at Ludwigshafen, in the French zone of occupation, killing almost 200 workers and injuring thousands more, 45 a ghostly reminder of the unsolved explosion at Ludwigshafen in 1921.

Reflecting on the tragedy, Judge Shake commented,

“The Tribunal has received unofficial information of the terrible tragedy that occurred last evening at Ludwigshafen, and I am sure that I speak for the Tribunal, as well as for all who are assembled in this room, when we express our sympathy for the deceased and pay a tribute to their memory, as well as to the families of those who have suffered in this unfortunate incident.”

The court record then noted, “The assemblage rose in silent tribute.” 46

Rudolf Dix, counsel for Hermann Schmitz, acting as spokesman for the defense, was granted permission to respond:

“May I express to you and to this Tribunal our heartfelt thanks, and the most heartfelt thanks in the name of these men here, in the name of the defense, and in the name of the unfortunate sufferers.” 47

After this brief and poignant ceremony, the court began to read its opinion. Relying on the decision in the trial of the major war criminals (October 1946), the court quickly disposed of counts one and four charging the defendants with the preparation and waging of aggressive warfare and conspiracy.

To the extent that the activities of the defendants... contributed materially to the rearmament of Germany, the defendants must be charged with knowledge of the immediate result.... The prosecution, however, is confronted with the difficulty of establishing knowledge on the part of the defendants, not only of the rearmament of Germany but also that the purpose of rearmament was to wage aggressive war. In this sphere, the evidence degenerates from proof to mere conjecture. 48 On counts one and four the court acquitted all the defendants. On the second count, spoliation and plunder, the court set the guidelines for guilt or innocence.

We deem it to be the essence of the crime of plunder or spoliation that the owner be deprived of his property involuntarily and against his will... when action by the owner is not voluntary because his consent is obtained by threats, intimidation, pressure, or by exploiting the position and power of the military occupant under circumstances indicating that the owner is being induced to part with his property against his will, it is clearly a violation of the Hague regulations. 49

Within this framework, nine of the defendants, including such principal members of the I.G. managing board as Hermann Schmitz, Georg von Schnitzler, Fritz ter Meer, Friedrich Jaehne, and Max Ilgner, were adjudged guilty. The remaining fourteen were acquitted. 50 Count three, charging the defendants with slavery and mass murder, was the distinctive element of the trial, and it remained so in the opinion of the court.

Taking note of the undisputed facts of the terror practiced by the Nazis, even on their own citizens, the court recognized the truth of the consequences confronting those who disobeyed the decrees of the Nazi state. Therefore, the court was,

“not prepared to say that these defendants did not speak the truth when they asserted that in conforming to the slave-labor program, they had no other choice than to comply with the mandates of the Hitler government.” 51

By refusing to become an oppressor, I.G. could have become a victim itself.

There can be but little doubt that the defiant refusal of a Farben executive 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 welcomed the opportunity to make an example of a Farben leader. 52

The question that remained, therefore, was under what circumstances could the defendants avail themselves of the defense of necessity. In its answer, the court stated quite succinctly 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 available where the party seeking to invoke it was, himself, responsible for the existence or execution of such order or decree, or where his participation went beyond the requirements thereof, or was the result of his own initiative. 53

Having thus set the limits of the defendants’ main defense, the court went on to outline with relative brevity the facts surrounding Auschwitz. Nevertheless, at times during the reading of the opinion, the facts evoked a passion that even a judicial manner could barely restrain.

The plant site was not entirely without inhumane incidents. Occasionally beatings occurred by the plant police and supervisors who were in charge of the prisoners while they were at work. Sometimes workers collapsed. No doubt a condition of undernourishment and exhaustion from long hours of heavy labor was the primary cause of these incidents.

...Rumors of the selections made for gassing from among those who were unable to work were prevalent. Fear of this fate no doubt prompted many of the workers, especially Jews, to continue working until they collapsed. In camp Monowitz, the S.S. maintained a hospital and medical service. The adequacy of this service is a point of sharp conflict in the evidence.

Regardless of the merits of the opposing contentions on this point, it is clear that many of the workers were deterred from seeking medical assistance by the fear that if they did so they would be selected by the S.S. for transfer to Birkenau. The Auschwitz construction workers furnished by the concentration camp lived and labored under the shadow of extermination. 54

Despite the fact that the court made it perfectly clear that “Farben did not deliberately pursue or encourage an inhumane policy with respect to the workers,” 55 it nevertheless was impressed by the facts disclosed at the trial of the direct responsibility of Ambros, Buetefisch, and Duerrfeld for taking the initiative in procuring slave labor and “to some extent, at least, they must share the responsibility for mistreatment of the workers with the S.S. and the construction contractors.” 56

Moreover, the court found that I.G. Auschwitz and Fuerstengrube, a nearby I.G. coal mine where slave labor was used, 57 were wholly private projects operated by Farben, with considerable freedom and opportunity for initiative on the part of Farben officials connected therewith.... The use of concentration camp labor and forced foreign workers at Auschwitz with the initiative displayed by the officials of Farben in the procurement and utilization of such labor, is a crime against humanity and, to the extent that non-German nationals were involved, also a war crime, to which the slave-labor program of the Reich will not warrant the defense of necessity. 58

The court wasted little time in convicting the defendants most directly involved in the operation of I.G. Auschwitz.

Our consideration of Auschwitz and Fuerstengrube has impressed upon us the direct responsibility of the defendants Duerrfeld, Ambros, and Buetefisch. It will be unnecessary to discuss these defendants further in this connection, as the events for which they are responsible establish their guilt under count three [slavery and mass murder] beyond a reasonable doubt. 59 Although there were no qualifications or reservations expressed by the court about the guilt of Ambros, Buetefisch, and Duerrfeld on count three, the language concerning Krauch and Ter Meer was more circumspect.

The evidence does not convince us that Krauch was either a moving party or an important participant in the initial enslavement of workers in foreign countries. Nevertheless, he did, and we think knowingly participate in the allocation of forced labor to Auschwitz and other places where such labor was utilized within the chemical field.

The evidence does not show that he had knowledge of, or participated in, mistreatment of workers at their points of employment. In view of what he clearly must have known about the procurement of forced labor and the part he voluntarily played in its distribution and allocation, his activities were such that they impel us to hold that he was a willing participant in the crime of enslavement.... 60 We reach the ultimate conclusion that Krauch, by his activities in connection with the allocation of concentration-camp inmates and forced foreign laborers, is Guilty under count three. 61

Ter Meer, the highest ranking scientist on the I.G. managing board and chairman of the technical committee, was also held guilty on the charge of slavery and mass murder. Two visits to Auschwitz and the fact that Ambros reported to him were the factors compromising Ter Meer.

The captured documents... established beyond question that the availability of concentration-camp labor figured in the planning of the Auschwitz construction. Ambros played a major role in this planning. His immediate superior with whom he had frequent contact and to whom he made detailed reports was Ter Meer. The over-all field of new construction was one in which Ter Meer was both active and dominant. It is indeed unreasonable to conclude that, when Ambros sought the advice of and reported in detail to Ter Meer, the conferences were confined to such matters as transportation, water supply, and the availability of construction materials and excluded that important construction factor, labor, in which the concentration camp played so prominent a part.

Ter Meer’s visits to Auschwitz were no doubt as revealing to him as they are to this Tribunal.... We are convinced beyond a reasonable doubt that the officials in charge of Farben construction went beyond the necessity created by the pressure of governmental officials and may be justly charged with taking the initiative in planning for and availing themselves of the use of concentration camp labor. Of these officials Ter Meer had the greatest authority. We cannot say that he countenanced or participated in abuse of the workers. But that alone does not excuse his otherwise well established Guilt under count three. 62

The rest of the defendants were acquitted under this count. 63 As its final act, the court handed down its sentences of the guilty. 64

Otto Ambros, guilty of count three, slavery and mass murder, sentenced to imprisonment for eight years.
Walter Duerrfeld, guilty of count three, slavery and mass murder, sentenced to imprisonment for eight years.
Fritz ter Meer, guilty of count two, plunder and spoliation, and count three, slavery and mass murder, sentenced to imprisonment for seven years.
Carl Krauch, guilty of count three, slavery and mass murder, sentenced to imprisonment for six years.
Heinrich Buetefisch, guilty of count three, slavery and mass murder, sentenced to imprisonment for six years.
Georg von Schnitzler, guilty of count two, plunder and spoliation, sentenced to imprisonment for five years.
Hermann Schmitz, guilty of count two, plunder and spoliation, sentenced to imprisonment for four years.
Max Ilgner, guilty of count two, plunder and spoliation, sentenced to imprisonment for three years.
Heinrich Oster, guilty of count two, plunder and spoliation, sentenced to imprisonment for two years.
Paul Haefliger, guilty of count two, plunder and spoliation, sentenced to imprisonment for two years.
Friedrich Jaehne, guilty of count two, plunder and spoliation, sentenced to imprisonment for one and one-half years.
Hans Kugler, guilty of count two, plunder and spoliation, sentenced to imprisonment for one and one-half years.

The prosecution staff was outraged by the court’s verdict and the sentences of the guilty. Chief prosecutor Josiah DuBois regarded the sentences as “light enough to please a chicken thief.” As he left the courtroom he exploded, “I’ll write a book about this if it’s the last thing I ever do.” 65

Within four years DuBois’s book appeared: The Devil’s Chemists: 24 Conspirators of the International Farben Cartel Who Manufacture Wars. It is a grimly passionate account of a unique moment in the history of commerce, warfare, and jurisprudence.

Almost five months after the verdict, Judge Hebert filed his concurring opinion on the charges of crimes against the peace (the preparation, planning, and waging of aggressive war) and his dissent on the charge of slavery and mass murder. Despite its concurrence on counts one and five, the 124-page opinion is nothing less than a castigation of the majority for their misreading of the record “in the direction of a too complete exoneration and an exculpation even of moral guilt to a degree which I consider unwarranted.” 66

To the contrary, the mass of the evidence presented during the long trial constitutes an “ugly record” revealing that I.G. went far beyond the activities of normal business “in its sympathy and identity with the Nazi regime.” 67 Judge Hebert, far more than his colleagues, stressed the historic mission of the trial:

“It is important not only to pass judgment upon the guilt or innocence of the accused, but also to set forth an accurate record of the more essential facts established by the proof.” 68

This Hebert did, in careful detail. However, even though the action of the defendants in aiding the Nazis to prepare and wage aggressive war and their “relationship to the crimes against peace” 69 could not be condoned or minimized, Hebert nevertheless felt he had to acquit the defendants on counts one and five. This acquittal had to stand, said Hebert, regardless of how much the defendants’ support,

“of the Nazi regime contributed first, to making the war possible from the viewpoint of production and, secondly, to prolonging the war after it had been launched.” 70

On the charge of slavery and mass murder, Judge Hebert dissented bitterly from his colleagues. In his judgment, all the defendants were guilty.

On the facts proven in this record, I am convinced that the defendants who were members of the [managing board of I.G.] were accessories to and took a consenting part in the commission of war crimes and crimes against humanity as alleged in count three of the indictment. 71...

In my view, the Auschwitz project would not have been carried out had it not have been authorized and approved by the other defendants, who participated in the corporate approval of the project knowing that concentration-camp inmates and other slave labor would be employed in the construction and other work.... 72

Having accepted a large-scale participation in the utilization of concentration-camp inmates at Auschwitz, and, acting through certain of its agents, having exercised initiative in negotiating with the S.S. to obtain more and more workers, Farben became inevitably connected with the inhumanity involved in the utilization of such labor....

The evidence establishes that the conditions under which the concentration-camp workers were forced to work on the Farben site at Auschwitz were inhumane in an extreme degree. It is no overstatement, as the prosecution asserts, to conclude that the working conditions indirectly resulted in the deaths of thousands of human beings.... 73

In summary, it is established:

that Farben selected the Auschwitz site with knowledge of the existence of the concentration camp and contemplated the use of concentration-camp inmates in its construction
that these matters necessarily had to be reported to and discussed by the [managing board] and the T.E.A. [Technical Committee]
that Farben initiative obtained the inmates for work at Auschwitz
that the project was constantly before the members of the T.E.A. for necessary appropriation of funds
that the T.E.A. had to have information on the labor aspects of the project to properly perform its functions
that the condition of the concentration camp inmates was brought to the attention of the T.E.A. and [managing board] members in various discussions and reports
that a number of the defendants were actually eyewitnesses to conditions at Auschwitz because of personal visits to Auschwitz
that the defendants Krauch, von Knieriem, Schneider, Jaehne, Ambros, Buetefisch, and ter Meer were all shown to have visited the I.G. Auschwitz site during occurrences of the nature generally described above
that the conditions at Auschwitz were so horrible that it is utterly incredible to conclude that they were unknown to the defendants, the principal corporate directors, who were responsible for Farben’s connection with the project. 74

Not only Ambros, Duerrfeld, Ter Meer, Buetefisch, and Krauch but every member of the I.G. managing board should have been found guilty of slavery and mass murder, according to Hebert. One can be certain that if he were passing sentences they would not have “pleased a chicken thief.”

Yet by the time Hebert wrote his dissent, the interest of the press and the public in the punishment of war crimes had almost disappeared, and the cold war was rapidly heating up.

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