After World War II, our government took the lead in establishing in international law the concepts of War Crimes and Crimes Against Humanity, embodied in the Nuremberg Principles. Some of the uses of napalm and herbicides in Vietnam seem to fit the definitions of such crimes. The Nuremberg Principles state specifically that acting under orders does not relieve those taking part in such crimes of individual responsibility. If that is true of military orders, which would have to be refused under all the stresses of military discipline and combat, how much more should it be true of business orders? If a soldier must accept individual responsibility for his part in a war crime in spite of being ordered to commit it, how much more heavy the responsibility of an industrial concern, for whom an order represents only an opportunity for profit?
Both the London Agreement and Charter of 1945 and the Nuremberg Principles include among Crimes Against Humanity “inhumane acts done against any civilian population.” The Nuremberg Principles I-IV declare explicitly that neither the internal law of states nor an authoritative position in the state, nor—most important—the performance of such an act “pursuant to order of his Government or to a superior” relieves one who performs such a crime from responsibility under international law—adding the curious qualification “providing a moral choice was in fact possible to him.”
Ordinarily it seems to be taken for granted that what is stated here involves specifically military orders. The point I wish to raise is: If—as seems to be the case—under all the pressures of military discipline and even under combat conditions, a person may be held criminally responsible for an unlawful act performed under the order of a superior, how much more should this be true of a presumably free agent, knowing fully the use to be made of his product, accepting a business order for it?
Take for example the German chemical manufacturers of the poison gas Zyklon, used in the extermination chambers. The Tribunal treated the extermination chamber personnel as war criminals, regardless of their having acted under the orders of superiors, civilian or military. Is not an industrial concern, which surely is free to make “a moral choice,” which is under no apparent discipline, and for which therefore an “order” represents only a business opportunity, considerably more culpable for its part in a “crime against humanity”?
A case in point is the use of napalm against civilian objectives in Vietnam, and the responsibility incurred by its manufacturer, until recently the Dow Chemical Corporation. Dow began to produce napalm at its plant in Torrance, California, in 1966. Napalm is a jellylike, inflammable mixture packed into canisters and dropped from planes on observed or suspected enemy targets. The materials are excessively simple: 25 percent benzene, 25 percent gasoline, and 50 percent polystyrene, a plastic manufactured by Dow Chemical and others. The point of this mixture is to form a highly incendiary jelly that clings, and so causes …
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