Corporations and War Crimes

In a separate case, three officers of the company Tesch and Stabenow were tried for supplying the poison gas used for the extermination of Allied nationals interned in the concentration camps. Between 1942 and 1945, four and a half million persons are estimated to have been killed at Auschwitz with Zyklon B. The prosecution’s case was that the commodity was being knowingly supplied to a branch of the state for the mass extermination of civiliannationals. Two senior officers of the company were found guilty; the third was acquitted because he was not in a position in the firm to influence or prevent the transfer of the poison. Both senior officers were hanged for their crimes.

A key issue raised in any discussion of corporate war crimes is that of “victor’s justice”: the idea that only nationals of the vanquished side are punished for their crimes. In this regard, it is significant that none of the U.S. or European firms that supplied the Nazi regime (among the most widely criticized were IBM, Ford, ITT, and Standard Oil) were ever put on trial. As Geoffrey Robertson points out in his book Crimes Against Humanity, the facts surrounding German companies’ supplying of nerve gas, subsequently used to massacre Kurds at Halabja, to Saddam Hussein’s regime raise issues of culpability that are similar to the Tesch and Stabenow case. Moreover, Hussein would not have been able to carry out his genocidal policies against the Kurds without aircraft supplied by Swiss and French corporations and weapons components and systems supplied by U.S. and British corporations.

However, in March 2005, the Netherlands government initiated a case against a Dutch national, Frans van Anraat , who allegedly supplied precursors for mustard and nerve gas used by Iraq. Movements against corporate crime have recently drawn attention to comparable cases that implicate corporations in the supply of equipment for use in war crimes and crimes against humanity, and collaboration with criminal regimes. For example, the supply of bulldozers by the British firm Caterpillar for use by the State of Israel, which used them to flatten Palestinian villages in the occupied territories, was exposed by the killing of Rachel Corrie, a twenty three-year-old American peace activist. Corrie was killed when she tried to prevent a Caterpillar D9 bulldozer from destroying a Palestinian home in the Gaza Strip on March 16, 2003. Campaigners in the UK have held a series of protests to prevent Caterpillar from selling more bulldozers to Israel. Human-rights organizations have alleged that corporations operating in Colombia, such as Coca-Cola and BP, have victimized trade union leaders and local opponents of paramilitary units as part of a generalized campaign to suppress opposition to their operations. Questions have also been raised about the role of corporations in the torture, or “disappearance,”of certain individuals.

Corporate war crimes pose particular problems in terms of enforcement and punishment: neither human-rights law nor the laws of war apply directly to corporations. Indeed, corporations are much more likely to enjoy protections under international law than to be held liable for crimes. This point raises a familiar dilemma in the study of corporate and state crime: that Western criminal law, dominated by the concept of individual intent, is inadequately constructed for dealing with the serious crimes committed by states and corporations. International criminal law has evolved with precisely the same emphasis upon individual, rather than collectively produced, crimes.

It is, therefore, much more likely that criminal liability for corporate war crimes can be attributed to individual directors or owners of corporations. Those cases are, however, likely to be rare for the same reasons that criminal senior officers are able to escape punishment for other crimes that involve injuring, maiming, and killing