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”?
Dow and Napalm
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 deep and persistent burns.
It may be that the poison gas used in the German gas chambers had civilian uses, as a pesticide. That might then have been cited by its manufacturers as an extenuating circumstance. So far as I know, napalm has no other use than as a military weapon. Indeed I think it has little use but as an anti-personnel weapon. Ordinarily an explosive would be used for any operation intended to destroy physical facilities or installations.
Napalm is probably the most inhumane anti-personnel weapon ever invented. The point of a weapon in war is to put an enemy out of action, and that is most readily and permanently accomplished by killing him; but civilized nations have tried not to induce more suffering than is necessary to achieve this end. Napalm maximizes the suffering. It is meant not only to maim permanently, and to kill slowly, but to inspire horror. That its use in Vietnam has involved many civilians, peasant families in undefended villages, has magnified the horror.
As a result, napalm early became a symbol to American students and others of their rejection of war, and specifically the Vietnam war. Already in 1966, pickets paraded at the Dow Chemical plant at Torrance and the offices of the company in New York. In the years since, the appearance of a Dow representative to recruit personnel on a college or university campus frequently provoked a demonstration. Such demonstrations have occurred at Harvard. Princeton, the University of California, Wisconsin, Minnesota, and many other places.
In March 1969 the “D.C. 9,” a group that included Arthur and Catherine Melville, onetime priest and nun serving with the Maryknoll Mission in Guatemala, a nun, three priests, two seminarians, and a draft resister broke into the Dow offices in Washington, disrupted files, and broke some office equipment, in protest against Dow’s part in providing chemical weapons that violate “international and moral law.” This group has since been convicted and sentenced. Catherine Melville and a priest, Bernard Meyer, who pleaded nolo contendere, are now serving their sentences; the others have appealed.
After all this publicity and public rejection, one could hardly plead corporate unawareness by Dow of what it was doing. If there is such a thing as individual or corporate responsibility for participating in a “crime against humanity” one could hardly find a better instance of it than this.
War Crimes and Crimes Against Humanity
The principles stated in the London Agreement and Charter and in the Nuremberg Principles were given effect by the Control Council for Germany, composed of the military commanders of the four occupied zones of Germany, in Control Council Law No. 10. Under Law No. 10, the United States conducted twelve trials at Nuremberg before American tribunals. Article II recognized among war crimes:
“Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including, but not limited to, murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian populations…murder or ill-treatment of prisoners-of-war…killing of hostages…wanton destruction of cities, towns or villages or devastation not justified by military necessity.”
Among crimes against humanity it included “atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape or other inhumane acts committed against any civilian population….” Article II went on to declare that “any person without regard to nationality or the capacity in which he acted, is deemed to have committed” such crimes “if he was (a) a principal, or (b) an accessory to the commission of any such crime or ordered or abetted the same, or (c) took a consenting part therein, or (d) was connected with plans or enterprises involving its commission, or (e) was a member of any organization or group connected with the commission of any such crime.”
Law No. 10 also restated the principle of personal responsibility: “The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime but may be considered in mitigation.”
If—as seems to me possible—some of the reported uses of napalm in Vietnam fit the definitions of war crimes and crimes against humanity, particularly as this weapon affected civilian populations, it would seem that a case might be made for holding the manufacturer of this weapon responsible as “an accessory” or as a consenting partner, or surely as an agency “connected with plans or enterprises involving its commission” or as “a member of an organization or group connected with the commission of any such crime.”
What particularly singles out such a weapon as napalm in this connection? I think it is mainly the principle of indiscriminateness of action, of failure to select its victims, Members of our armed forces are now facing courtmartial for having killed civilians who were clearly visible and hence identifiable as such. In prosecuting such cases we recognize officially that it is a war crime or a crime against humanity to select the wrong persons (e.g., unarmed civilians) to kill. It seems to me to be only an extension of the same principle to regard as criminal not selecting the right persons to kill, i.e.’ military personnel.
This is the principle that lies behind the attempt to attack only military objectives. The blind destruction of whole villages with artillery or from the air—on the grounds that one had drawn fire from somewhere in or near it, or that these places might otherwise prove of some use to an enemy—wounding and killing civilians, and destroying their homes and livelihood, would seem on this basis to constitute a war crime. The very nature of napalm makes inevitable such nonselective destruction. It invites uses that can hardly be confined to military objectives. Added to its intrinsic cruelty, this is what makes napalm such a reprehensible weapon.
One can make about as good a case surrounding the use in war of herbicides and defoliants as with napalm. Indeed that case has already been made (cf. for example Thomas Whiteside’s articles in The New Yorker, February 7 and March 14, 1970, and his book Defoliation, Ballantine/ Friends of the Earth, 1970). Once again Dow is heavily involved. It is one of the principal makers of 2,4,5-T, a herbicide that has been sprayed over large areas of Indochina, and has recently been shown to have powerful teratogenic (embryo-deforming) effects in rats and mice, and perhaps in man. Dow had to shut down part of its plant in Midland, Michigan, for a time because a number of workers had contracted chloracne, a skin and nerve disease caused by contact with dioxin, a prevalent contaminant in the manufacture of 2,4,5-T (Thomas Whiteside, Defoliation, page 48). To complete the story, five members of a group calling itself “Beaver 55,” who pleaded guilty to damaging property at this plant, are now awaiting sentence (New York Times, June 4, 1970).
Consciousness of Guilt
It is curious to realize that the special reprehensibility of such weapons is well understood by all concerned. There are weapons that governments and armed forces are proud of and put on public display. There are other weapons that are hidden and are talked about as little as possible, for reasons quite apart from security, just because their uses and effects are likely to arouse public dismay, horror, and perhaps active opposition. Napalm, the nerve gases, indeed all poison gases, herbicides and defoliants, and all the weapons of biological warfare—pathogenic bacteria, viruses, and toxins—all are of this nature. Everyone concerned with procuring, producing, or using them tries in every way possible to avoid publicity.
It is interesting that this was the case long before we had the Nuremberg Principles. Of course the latter mark only a recent attempt to ameliorate the conduct of war. Before them there already existed such formulations of the “laws of war” as the Hague Convention of 1907; and such international agreements directed toward particular issues as the Geneva Protocol of 1925, banning first use of chemical and bacteriological methods of warfare.
When the great German chemical trust, I. G. Farben, began in 1939 to develop a war gas program, it went to considerable lengths to conceal the operation, as a matter of corporate rather than military secrecy.
I.G. organized a 100 percent subsidiary, Luranil, for the construction of plants and another one, Anorgana, for their operation. These were in reality cover names to conceal ownership and partly to relieve I. G. of responsibility, but the capital was owned by I. G.
In connection with poison gas we shall meet Luranil and Anorgana together with the reference of the US Strategic Bombing Survey that they were for the express purpose of concealing I. G. Farben’s participation in connection with the construction and operation of poison gas plants. [US Military Court, Case VI, 1947, page 1140.]
Dow Chemical manufactured napalm quite openly. Yet its responses to criticism on this score reveal a strange degree of defensiveness and consciousness of vulnerability. Take for example the statement of Ted Dillon, the president of Dow Chemical, writing in the Wall Street Journal in December 1967:
“Why do we produce napalm? In simplest form, we produce it because we feel our company should produce those items which our fighting men need in time of war when we have the ability to do so.
“A quarter of a century ago this answer would have satisfied just about everyone who asked this question. Today, however, it doesn’t. Today we find ourselves accused of being immoral because we produce this product for use in what some people consider an unjust war. We are told that to make a weapon because you’re asked to do so by your government puts you in precisely the same position as the German industrialists who pleaded at their Nürnberg trials that they were ‘only following orders.’
“What of the argument that we are no different from the German industrialists who ‘just followed orders’? We reject the validity of comparing our present form of government with Hitler’s Nazi Germany. In our mind our government is still representative of and responsive to the will of the people.
“Our critics ask if we are willing to stand judgment for our choice to support our government if history should prove this wrong. Our answer is yes….”
Actually in spite of this curious declaration by its president, Dow Chemical had issued earlier a formal statement that disavows exactly the kind of responsibility that our government agrees exists under the Nuremberg Principles:
“Our position on the manufacture of napalm is that we are a supplier of goods to the Defense Department and not a policymaker. We do not and should not try to decide military strategy or policy.
“Simple good citizenship requires that we supply our Government and our military with those goods which they feel they need whenever we have the technology and capability and have been chosen by the Government as a supplier.
“We will do our best, as we always have, to try to produce what our Defense Department and our soldiers need in any war situation. Purely aside from our duty to do this we will feel deeply gratified if what we are able to provide helps to protect our fighting men or to speed the day when the fighting will end.” (Don Whitehead, The Dow Story, McGraw-Hill, 1968, page 264.)
It is curious to expect fighting men under all the stresses of combat to exercise a degree of personal responsibility and judgment that a large civilian corporation so lightly disclaims.
Dow made a further argument that seems to it important and was widely used by its representatives on campuses, though its relevance seems somewhat questionable:
“In terms of dollars, the contract was a small one in the range of $5 million in 1966, or about one-fourth of one percent of the company’s total sales. The profit involved was of little material significance.” (Dow Story, page 264.)
There was even a letter from former Secretary of Defense Robert McNamara to Ted Dillon, written in 1967, saying: “There are also charges that your company is a war profiteer, charges made by persons ignorant of the purchasing procedures of the Department of Defense and of your company’s role as a defense supplier. As you well know, our contracting procedures ensure that there can be no profiteering….” (Dow Story, page 268.)
Actually this position leaves something to explain. In order to play down the napalm operation, it is stated that the plant at Torrance “employed less than a dozen workers.” Since the materials of napalm are of the simplest and cheapest, it is a little difficult to understand why the contract should have come to $5 million in 1966, and apparently had increased to $10 million in 1969, when Dow permitted itself to be outbid on the napalm contract by American Electric Company of Los Angeles. As I understand it, this company originally made only the containers for napalm, but now does the whole job. One might well ask what considerations prompted Dow to drop out of this contract. Since, as it said, the profit was of little significance, one might have expected its sense of “simple good citizenship” to have prompted Dow to keep the contract going.
One should perhaps make another point. We have been told repeatedly that advertising is more effective the stronger the emotions it arouses, whether of approval or rejection. It should be noted that if one were to ask almost any American—or any foreigner—the name of an American chemical company, he would probably be able to name only Dow; and that primarily because of the campus demonstrations. Have they hurt or helped Dow in its business? I cannot say; yet the discussion of napalm in The Dow Story ends on the note: “The campaign had no apparent short-term adverse effect, either on Dow Chemical’s sales or its recruiting.”
A Test Case
The Nuremberg Trials were conducted under severe limitations, some of which no longer apply. For example, the “war crimes” considered were only those condemned earlier by the Hague and Geneva Conventions. They never came to encompass the new and unusual methods of warfare introduced in World War II. Moreover it was ruled that “crimes against humanity” that had occurred before the war began in 1939 did not lie within the Tribunal’s jurisdiction. The trials also had to be conducted under the disability of being retroactive, in that the Nuremberg Principles were established after the relevant actions had occurred. Now, twenty-five years later, none of these considerations is pertinent.
But the biggest limitation, in part written into the Principles, in part owing to interpretation and hence open to reinterpretation, is in the thesis that the Nuremberg Principles become applicable only when coupled with aggressive war. And in these days, all war departments have become “defense” departments, and all wars are defensive. The aggressor is always on the other side. So long as one can claim to be repelling an aggression, the doctrine runs, anything goes. That accounts for some of the strange and otherwise inexplicable rhetoric prepared from time to time by our own State Department. So, for example, former Secretary of State Rusk has continually insisted that we went into South Vietnam to repel a foreign aggression, though I think all objective evidence has made it clear that the contrary is closer to the truth.
Rusk’s claim was in the nature of a self-fulfilling forecast.* So also we have just gone into Cambodia to defend it against foreign aggression, while supporting there a new military dictatorship that takes the same view of the matter. Yet the interpretation of the Principles that brings them into force only to deal with alleged aggressors is being altered even now, for our Department of Defense is court-martialing military personnel for violating the Nuremberg Principles, in spite of maintaining that the violations occurred in the course of a defensive war.
The Nuremberg Tribunal recognized from the start that it operated under special limitations, and foresaw that the Principles would be broadened and deepened in their later application. Indeed without such further development they would mean little, except for adding opportunities for the victors in war to punish the defeated. If they are ever to mean more, they must be made to apply to categories of acts, regardless of alleged provocation.
The main point of this article is to indicate one reasonable direction in which these Principles can be expanded, so as to include the concept of corporate responsibility. This would project the Nuremberg Principles into the civilian sector, where much of the special interest and political power are based, and where many of the pressures originate that decide foreign policy.
For this we need only a precedent. Once a precedent is established, it would have wide application not only in this country, but internationally. It would warn industry everywhere that it may have to share with the military the responsibility for war crimes and crimes against humanity.
One attempt to establish such a precedent is under way. A civil action has been entered against the Dow Chemical Company in the United States District Court for the District of Columbia to compel Dow to stop producing chemical and biological weapons thought to violate international law. The chief counsel is Professor Alan Scheflin of the Georgetown University Law Center. The suit refers to Dow’s production and sale of “various types of chemical, biological, bacteriological, incendiary and asphyxiatory weapons.” There are more than sixty-five plaintiffs, including professors in various fields, clergymen in all the major denominations, and officers of a wide variety of civic organizations. I am one of the plaintiffs.
Once such a precedent is established, it can be applied more widely. As already noted, the Nuremberg Tribunal did not consider the new types of weapons used in World War II. Some of them are as reprehensible in their nonselectivity and their involvement of civilians as napalm, herbicides, or asphyxiating gases. Some of the antipersonnel bombs used in Vietnam, for example, have negligible effects upon buildings and other fixed installations, but kill and maim widely when dropped in densely populated areas. The “pineapple bomb” contains steel pellets in a hollow cylinder that explodes in a sunburst pattern covering an area one-half to one kilometer across. Each “mother bomb” holds 640 bomblets, each of which discharges 300 pellets, about one-quarter inch in diameter (California Law Review, November 1969, p. 1090).
But all such devices are trivial compared with nuclear weapons. The primary use of nuclear weapons is to wipe out centers of population: one missile, one city. This year on August 6 we shall commemorate dropping the first atomic bomb on Hiroshima. It killed about 100,000 persons; and burned, maimed, and poisoned about 100,000 more. The amount of suffering caused by that one bomb has bred an entire literature, which tried to portray it and failed. Yet we go on making these weapons. A couple of years ago the stock piles in this country and the Soviet Union had reached the explosive equivalent of fifteen tons of TNT for every man, woman, and child on the earth. We are now engaged in a new escalation that, if unchecked, will increase these stock piles on both sides by five times within the next five years.
In our country, that too is a major business. The ABM, even in its present thin Safeguard form, generates contracts now worth about twelve billion dollars. MIRV, the multiple-warhead missile now beginning to be installed, is projected to involve contracts worth seventeen billion dollars—such contracts involve a large corporate responsibility, for those weapons threaten to extinguish human life on the earth. That would be the war crime to end all war crimes. The major contractors associated with nuclear weapons and their control systems include Bell Telephone, Raytheon, and General Electric, in addition to such more conventional arms manufacturers as Martin-Marietta and McDonald-Douglas.
So the point now is to make a beginning, where much more needs to be done. The villain in the piece is total war, a concept until recently repudiated by all civilized nations, including our own. Yet mitigating the effects of war is only a first, fumbling step toward eradicating it. War itself is the atrocity, by now become too dangerous for us to tolerate longer.
July 2, 1970
When the American bombing of North Vietnam began in February, 1965, there was as yet no evidence of North Vietnamese military units in South Vietnam. They seem to have appeared there a few months later. ↩