It's Debatable: Should Bayer, IBM be held liable for Nazi atrocities?

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate if the Bayer Corporation and IBM should be held criminally liable for atrocities committed by the Nazi regime during World War II. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston. 

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Bayer Aspirin was the universal and trusted elixir for almost every ache and pain in the 1950’s. Like many Baby Boomers, I strongly identified with the Bayer logo which is still highly regarded, particularly in Lubbock. I was thus horrified when I found a photo of the same logo affixed to a cannister of one of the most deadly poisons ever created by man or should I say, the Bayer Corporation – Zyklon B. It stood next to a death chamber used by the Hitler regime and Nazis to murder over 6 million Jews and other “undesirables”. To Bayer, a company of truly evil intent, the murder of innocent children and particularly women was just a cost of doing business as evidenced by the following excerpt from a business transaction between Bayer and the Nazi regime where women used for purposes of experimentation (to prove the toxicity of Zyklon B) died in transport. A Bayer employee denoted this abomination as follows: “The transport of 150 women arrived in good condition. However, we were unable to obtain conclusive results because they died during experiments. We kindly request that you send another group of women to the same number and at the same price.”

I similarly viewed IBM in the same high regard as Bayer but with more reverence given my interest and involvement in artificial intelligence. Afterall, the founder of IBM, Tom Watson, was the namesake for the illustrious “Watson” computer which beat the best human player in Jeopardy.

Unfortunately, I also had a rude awakening that Tom Watson was a huge fan and supporter of Adolf Hitler and gleefully supplied the Nazis with the first punch cards and computers ever created which were used to track the location of Jews throughout Germany and surrounding areas (Google “Watson and Hitler”). Without the technological support of IBM, which is extensively documented and indisputable, the Nazis would have been unable to identify and arrest the vast numbers of Jews who were then shipped to death camps to be murdered en masse.

Bayer and IBM have blood on their hands and should be held accountable for murder in the same manner the U.S. has tracked down Nazi war criminals and brought them to justice. Since all of the human collaborators of both corporations are likely dead or very close thereto, the only course of action is to bring criminal charges against the entities. From a strictly ethical standpoint, it makes no sense to prosecute individuals for the identical crimes committed by Bayer and IBM, but to not only let these mega-giants “get away with murder” – but to run smiling to the bank.

I have written extensively on this issue and in my book – “The Golden Mile – The Case for the Corporate Death Penalty” – but the gist is that corporations should be made liable for committing murder. Since you can’t execute an entity, the next best thing is to take away their assets and right to conduct business in the United States which is precisely what I advocate. I would also require that if convicted after due process, that reparations be paid to the surviving families.

Anticipating that Rick will argue there is no precedent for these actions in the United States, I will mostly agree but point out that such laws now exist in the UK for precisely the same reasons. Additionally, I would recommend that individual states revise their criminal statutes to include entities within the definition of “person” for purposes of committing homicide and extend and statutorily allow for the prosecution of crimes which occurred during the Nazi reign.

Finally in the interest of full disclosure, I must tragically report that many members of my family died in the fiery pits of Auschwitz. Personally, I have no interest in reparations as a monetary award which will never bring my loved ones back. Only justice.

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This is a difficult issue. My wife’s family and mine lost relatives during the Holocaust. My mother-in-law’s long-time companion is a Holocaust survivor—he and his family escaped from a train taking them to the Majdanek Concentration Camp, which used Zyklon B, and joined the Bielski Brothers-lead Jewish partisans in Poland. I will not defend Bayer or IBM, but neither company should be liquidated for crimes allegedly committed 80 or more years ago.

First, contrary to Charles’ suggestion, Bayer did not create Zyklon B. Its basic compound had been used as a pesticide since the 1880’s. In 1922, chemists from Degesch, a German chemical company, devised a means of packaging the chemical compound in sealed containers and called it Zyklon B. In 1946, Dr. Bruno Tesch, one of Zyklon B’s developers, was sentenced to death for war crimes by a British Military Court for demonstrating to the Wehrmacht how Zyklon B could be used to kill more efficiently than bullets, training SS personnel in its use, and supplying Auschwitz with Zyklon B.

Second, in 1925, Bayer ceased to exist as an independent company: it merged with five chemical companies to form I.G. Farben AG. Following the war, the allies seized Farben, which became the subject of a U.S. Military Tribunal at Nuremberg. Among other charges, Farben directors were accused of committing crimes against humanity by using slave labor. Importantly, Farben was acquitted of supplying Zyklon B to exterminate enslaved persons, which was sold by another company—Degesch. Farben was also acquitted of conducting medical experiments on enslaved persons.

Third, the allies liquidated Farben, the punishment Charles advocates. Indeed, the Americans seized Farben’s headquarters building in Frankfurt, which the Supreme Allied Command used as its offices. I worked in the building from 1978 to 1980 when assigned to the Army’s V Corps.

Fourth, only in 1951, did Bayer reconstitute as an independent company. Unless Charles ignores the principle of former jeopardy, the company cannot be punished for acts for which it (Farben) was acquitted. Moreover, its current employees and shareholders—particularly those in the United States—are innocent of any misconduct that occurred 80 years ago by a different entity outside this country.

What IBM did with its punch cards to help the Germans identify Jews is detestable. But Charles presents no evidence that IBM knew or intended what happened to the Jews. It seemingly sold its technology for one purpose: profit. And neither the current company nor its shareholders are responsible for the actions of Thomas Watson, about whom few (if any) have any knowledge.

Finally, I am curious about how Charles would go about stripping these companies of their assets and barring them from doing business. On what legal principles does he rely? Assuming the companies are afforded due process, what kind of tribunal does Charles envision? What about the property rights of current shareholders? And if new laws are required, how would Charles deal with the Constitution’s ex post facto clauses and—in Bayer’s case—the principle of former jeopardy?

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Although I could trace the corporate succession which leads to the liability of Bayer for its murderous acts, I will take Rick up on his comment that I failed to present evidence on the culpability of IBM. I will do that now for the sake of efficiency as that will also allow for the exploration of additional legal issues which are raised in his first rebuttal.

I refer our readers to the N.Y. Times Bestseller, IBM and the Holocaust – the Strategic Alliance between Nazi Germany and America’s most Powerful Corporation by Edwin Black. This detailed work presents indisputable evidence of the collaboration of Hitler, the Nazis, and IBM which supplied its fledgling computers and first punch cards to identify, trace, and seize Jews throughout Germany and the surrounding regions. IBM, through its German subsidiary Deutsche Hollerith or Dehomag not only facilitated but ravenously prosecuted Hitler’s stated goal when he came to power of identifying and exterminating Germany’s 6,000,000 Jews and millions of other victims throughout Europe.

For proof positive of the direct role of IBM in carrying out Hitler’s Final Solution, one need only Google the IBM Hollerith machine which was displayed at the United States Holocaust Museum and later removed. These IBM machines were located at every concentration camp including Dachau and Auschwitz where millions of Jews were led into gas chambers disguised as showers and murdered en masse. The hellish screams of the victims including women and children were drowned out by the sound of classical music at the gates to prevent immediate panic. At the end of each “cycle”, the bodies of children clinging to their parents were removed and then immediately cremated to make way for the next group. Edwin Black supplies all the linkage between these atrocities and IBM when he states, “Without IBM’s machinery, continuing upkeep and service, as well as the supply of punch cards, whether located on-site or off-site, Hitler’s camps could never have managed the numbers they did… In some camps such as Dachau and Storkow, as many as two dozen (IBM) tabulators and printers were installed.”

Thus, there is no denying that IBM has blood on its hands for these unimaginable acts of cruelty. The question raised by Rick is whether prosecuting Big Blue is legally permissible. Given that IBM was never criminally charged or prosecuted for its genocidal role in WW-2, the constitutional U.S. protections of Double Jeopardy would not apply.

The larger question is whether the constitutional prohibition of ex-post facto laws would bar prosecution. The U.S. Constitution prohibits governmental entities from passing retroactive laws which punish criminal behavior which was not illegal at the time the act was committed. However, there is no bar on individuals bringing such claims based on civil claims for wrongful death. From a strictly “criminal” liability perspective, Rick does raise a valid point, however, the imposition of ex post facto restrictions would likely not apply to a criminal action brought before an international tribunal. This issue came up before the Israeli Supreme Court in tandem with the capture and prosecution of the Nazi Butcher Adolph Eichmann based on a criminal law adopted after WW-II in 1950. The Israeli Court dismissed the Ex Post Facto argument concluding that this defense had “not yet become a rule of customary international law.”

In concluding this rebuttal, I will recall Hitler’s final words to his biographer before he committed suicide in an underground Bunker – “Centuries will pass away but hatred will ever renew itself against International Jewry.” Tragically, Hitler’s words are still prescient and instill the critical importance of holding corporations liable for past atrocities. I present Bayer and IBM as Exhibit A.

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I share Charles’ outrage at the Nazi-era conduct of IBM and Bayer’s parent company—I.G. Farben. The question is whether anything can be done today about their participation in Nazi atrocities. Regretfully, I think not.

First, as noted above, many Holocaust participants (including Farben) faced criminal prosecution after World War II.

Second, while money alone can never ameliorate the horrors of the Holocaust, it is the only realistic remedy. The German government has paid about $90 billion dollars in compensation to Holocaust survivors and their heirs. Payments to survivors continue to this day.

Third, in 2001, Holocaust survivors sued IBM under the Alien Tort Statute (“ATS”) for compensation for IBM’s role in implementing, aiding, assisting, or consciously participating in “the commission of crimes against humanity and violations of human rights … by providing the technology, products and services it knew would be used to facilitate persecution and genocide.” The ATS affords U.S. district courts jurisdiction over lawsuits by aliens for torts “committed in violation of the law of nations.” The plaintiffs dismissed the lawsuit when German businesses agreed to pay $2.3 billion into a fund to compensate forced laborers, a sum to be matched by the German government; however, payments were conditioned upon immunity from future lawsuits. Even though the agreement did not cover lawsuits against U.S. parent companies like IBM, the plaintiffs dropped the suit “to eliminate any obstacles German industry believes would hinder such payments to victims of the Holocaust.” IBM’s German division paid $3 million dollars into the fund without admitting liability. A Swiss court dismissed as time barred a similar lawsuit against IBM for the Nazi extermination of 600,000 Roma.

Fourth, Thomas Watson’s dealings with Germany were seemingly without knowledge that the Nazis would use IBM technology to kill Jews. As Black noted: “Watson didn’t hate the Jews…. It was always about the money.” Or as one of Watson’s biographers wrote, “[Watson’s] optimism and his sense of accomplishment blinded him to any downside…. Watson didn’t see the Nazis for what they were. He saw them for what he wanted them to be.”

Fifth, Charles suggests an international tribunal, but does not describe who would convene such a forum. No international enforcement mechanism currently exists to try corporations for war crimes. And while the International Criminal Court (“ICC”) has jurisdiction to try corporate officers, it does not have jurisdiction over corporations themselves. And the IBM corporate officers responsible for assisting the Nazis are long gone.

This article originally appeared on Lubbock Avalanche-Journal: It's Debatable: Should Bayer, IBM be held liable for Nazi atrocities?