Slave Labor in Nuremberg's I.G. Farben Case: The Lonely Voice of Paul M. Hebert

• Author: Alberto L. Zuppi
• Position: LL. B. 1975 University of Bs.As. (UBA)
• Pages: 495-526

Page 495

Introduction

The use of forced labor during an armed conflict was the State's common practice for filling up the gaps left behind by the requirements of the human war machine. At the time of World War II, the work of prisoners of war (POWs) was considered, among other dispositions, by the 1899 Hague Regulations and the 1929 Geneva Conventions,¹ and the forced working of the civilian population was delimited to exceptional circumstances by the Convention concerning Forced or Compulsory Labor.²

Even in America, the use of forced labor of German POWs during the war accomplished some primary tasks. In 1943, the sugar cane crop in Louisiana might conceivably have been lost without them.³ However, the rules concerning the treatment of POWs and the civilian population of the occupied territories were totally disregarded by the Axis powers during World War II. ThePage 496 systematic annihilation of detainees and the enslavement of workers for the production of war materials reached a climax during the Nazi dominion over Europe. Never before in the history of mankind was there such a disregard or criminal omission of the most elementary rules protecting the civil population and captive enemy combatants.

Recently, there has been a renewed interest in the question of forced and slave labor by German firms during World War II due to the discussions and final creation of the Foundation "Remembrance, Responsibility and Future."⁴ More than six thousand German firms that used forced or slave labor during the Nazi period contributed to the establishment of a fund of more than five billion German marks (Deutsche Mark or DM). That money will be used to pay a personal indemnification to those who were submitted to that kind of work or to their heirs. However, the individual damages were limited to a pre-fixed maximum sum of 5,000 DM for "forced labor" and 15,000 DM for "slave labor," understanding that the latter took place in concentration camps. From the beginning of the discussions to establish the fund, German corporations were adamantly against the acceptance of any legal liability and instead preferred to assert a "moral obligation" as justification for their grudging contributions to the fund.⁵

Sixty years have elapsed since the international prosecution of the major Nazi criminals in Nuremberg, but the horrors and abominations shown in 1946 remain an obdurate abhorrence in the collective memory. One of the twelve main cases after the major trial in Nuremberg was exclusively concerned with the criminal activity of the most important German business consortium in history.⁶ The members of the board of I. G. Farben werePage 497 prosecuted for helping Hitler to reach power, to wage aggressive war, and for the commission of crimes against humanity, especially the building up of a factory using slave labor in the most emblematic of concentration camps: Auschwitz.

In spite of the overwhelming criminal implications of operating a factory with slave labor in Auschwitz, the American Tribunal in that case rendered a surprisingly lenient judgment against some members of the consortium and acquitted the rest of all major charges. The defendants were highly educated, belonging to a scientific and managerial aristocracy of inventors, Nobel Prize recipients, and entrepreneurs.⁷ How can one even conceive that such a highly respected elite could have consented to the use of concentration camp inmates until their collapse? Albeit, if such an accusation was true, how could an American Tribunal in occupied Germany be lenient with it? Only one member of the Tribunal delivered a dissenting opinion in relation to the slave labor account. This paper is concerned with him and his role in that trial.

In the first part of the paper, I will refer briefly to the origin of the post International Military Tribunal (IMT) Nuremberg Tribunals, held in the midst of the rubble of Germany, under the ominous shade of a menacing Soviet Union, and the consequent pressure of what would be known as "the Cold War." A brief history of the Farben group is included in this section. In the second part, I will turn my attention to the Farben case itself, the way it was presented by the Prosecution, and the Tribunal's judgment, including a synopsis of the majority's arguments regarding aggression and slave labor. In the last part of the paper, I will analyze the criticisms of Judge Hebert and study the American attitude toward German industrialists on one side, and the American policy regarding war crimes prosecution on the other. I will also discuss the evolution of the subject matter beyond the context of Nuremberg. The conclusions, I hope, will help to explain an unfinished dilemma and its consequences, as well as to realize its further implications for some of thePage 498 international crimes now determined by the Rome Statute for the establishment of the International Criminal Court.⁸

I Germany Ground Zero

During the summer of 1946, when the IMT judging of major war criminals was still under way, the representatives of the military authorities occupying Germany were deciding the feasability of preparing a second Nuremberg Trial before a new and consecutive IMT.⁹ However, no further action was going to be taken before the first IMT rendered a final judgment,¹⁰ which finally happened on October 1, 1946.¹¹

When submitting his final report to President Truman, Robert H. Jackson, the Chief American Prosecutor, recommended that any future trials would be more expeditiously resolved if they were held in national or occupation courts rather than in an international tribunal.¹² It is important to be aware of the sense of urgency which exudes from his report. Time was running out for punishment, and the large and somber specter of another war lurked on the horizon.

On January 27, 1947, the U.S. Government informed its allies that it would proceed with the trial of various German war criminals through "Occupation Tribunals" which were to be established in the American Zone.¹³ The jurisdictional foundation of these Occupation Tribunals, subsequent to the first IMT trial,Page 499 was Control Council Law (CCL) No. 10, a hybrid between international and national law.¹⁴ This instrument, issued by all four Occupant Powers and based on the Charter of the IMT, defined in a larger form the crimes which would be prosecuted and the rights and duties of each occupying power.

A Assembling the Subsequent Tribunals

One day after Jackson's resignation, Military Government Ordinance No. 7 was issued providing details for the composition of subsequent tribunals and the rules that would govern them.¹⁵

Each tribunal was to consist of three members and one alternate judge. All sources agree that it was a considerably difficult task to obtain the desired number of qualified jurists for the future courts.¹⁶ The Military Governor, with the advice of the Director of the Legal Division, would determine which judges to appoint to each particular tribunal and who would preside over them.¹⁷

At the beginning of 1947, thirty-two names were selected, including twenty-five who were or had been State court judges, six prominent practicing attorneys, and only one law school dean: Paul Macarius Hebert, Dean of the Law School of Louisiana State University (LSU).

Hebert, a native Louisianian from Baton Rouge and a graduate in law from LSU and Yale, was named Dean of Administration of the University when he was just thirty-two years old. His appointment was decided following the so-called "Louisiana Scandals" which rocked the State and even touched the University,Page 500 Hebert being largely responsible for cleaning up the financial irregularities at LSU.¹⁸

Since the beginning of the American participation in World War II, Hebert was engaged in the Industrial Contracts Division of the Army Judge Advocate General's Corp (JAG). His position was Chief of the Industrial Law Branch of the JAG's office in Washington, serving between April 1942 and October 1945. He obtained the rank of Lieutenant Colonel. There, Hebert undertook several commissions from Undersecretary of War Robert Patterson and it was probably his work in this office that marked him to be designated as civilian judge in the subsequent Nuremberg Trials. Upon recommendation of the Secretary of War, his name was suggested to President Truman.

Hebert and his family left New York on board the USAT Alexander on July 8, 1947. After their arrival in Germany via Bremerhaven ten days later, they were redirected to Nuremberg by train. Like his colleagues in the future Tribunal, the group was accommodated in Nuremberg's "Grand Hotel" which was being reconstructed until more suitable accommodations could be located. Hebert was convinced that he was going to be back in Louisiana for the second semester of the 1947-1948 academic year.¹⁹

On August 9, 1947 the American Military Governor in occupied Germany issued order No. 87 and Military Tribunal No. VI was finally constituted.²⁰ Curtis Grover Shake, former Justice of the Supreme Court of Indiana, was appointed as its Presiding Judge. The court was going to be staffed by him, James Morris, who was Justice of the Supreme Court of North Dakota, and Dean Hebert. Clarence F. Merrell, a member of the Indiana bar and a friend of Shake's, was designated as an alternate Judge.Page 501

B Bonds with the IMT?

Ordinance No. 7 was issued pursuant to Articles 10 and 11 of the IMT Charter,²¹ among others...