Meanwhile, away from court, there was yet more criticism coming from the United States. On November 27, 1947, Congressman John E. Rankin of Mississippi declared on the floor of the House of Representatives: “What is taking place in Nuremberg, Germany, is a disgrace.… Every other country has now washed its hands and withdrawn from this saturnalia of persecution. But a racial minority, two and half years after the war closed, are in Nuremberg not only hanging German soldiers but trying German businessmen in the name of the United States.” By now, though, Taylor’s lawyers were getting used to remarks of this kind; indeed they had heard them in Nuremberg itself. On one occasion Josiah DuBois was told that one of the judges had said publicly, “There are too many Jews on the prosecution,” and had wanted to know if he, DuBois, was Jewish. On another, Drexel Sprecher was attacked at the bar of the Grand Hotel by an assistant to one of the judges for being too “anti-German.” The lawyers just had to hope that such views did not truly represent the judges’ feelings. But they could not help but be discomfited when they found out that Justice Morris’s wife, who had accompanied him to Nuremberg, was in the habit of inviting the wives of IG directors out for drinks.
And so the case ground on, only noticeably engaging more of Morris’s attention when it got to the IG’s takeovers of businesses in occupied territories. Clearly the violation of private property was more in line with his American juridical values than much of what had gone before, although he complained again about “this case becoming bogged down by a lot of irrelevant evidence” when the prosecution wanted to introduce documents to show exactly how the IG had camouflaged its intentions in Czechoslovakia. It had become a common theme of his: “We are supposed to conduct a speedy trial.… It seems to me that when the record of trial is reviewed, if it is too long and complicated, the responsibility will primarily lie with the prosecution.”
Testimony from witnesses was usually received with more interest. It was hard, for example, for any neutral observer to remain unmoved by Maurcy Szpilfogel’s account of how his factory was confiscated by the IG, his failed attempts to get help from Georg von Schnitzler, his subsequent incarceration in the Warsaw ghetto by the SS, and the deportation of his wife and children. With the help of gentile friends Szpilfogel eventually managed to escape his confinement and spent more than two years hiding out on Warsaw rooftops. From there, in the spring of 1943, he had watched the ghetto’s final annihilation.
* * *
FOR THE DEFENDANTS, each day in court was much like the next. Most weekdays they were woken at dawn by the U.S. Army guards, given a modest breakfast, and then escorted through the covered walkway that joined the cellblock to the Palace of Justice, where proceedings began at 9:30 a.m. And there they would sit, apart from short recesses and an hourlong break at lunch, until Curtis Shake called a halt at around 4.30 p.m. At first, despite a few outward displays of bravado, most had been obviously nervous and intimidated by their surroundings. They were being tried in the same second-floor courtroom that had seen the convictions of Göring, Hess, Speer, and the other leading Nazis a year earlier, and the knowledge that several of those defendants had been hanged was probably enough to frighten any man charged with similar crimes. Indeed, the prosecution, whether deliberately or not, had added to this disquieting similitude by allocating the men seats in the dock according to their status and position in the IG, much as their predecessors had been seated according to their rank in the Nazi hierarchy.
Inevitably the defendants became accustomed to the daily ritual, and as the weeks went by the prosecutors noticed that the men in the dock no longer listened with avidity to every word said in court, nor did they seem to find the proceedings threatening. Occasionally one would sigh ostentatiously or shake his head as a prosecutor got the name of a chemical procedure wrong or a witness stumbled over his testimony. When one of them was called out to answer questions, the others would lean forward more expectantly and follow the exchange with furrowed brows, smiling in quiet approbation when he scored a particularly telling point or pursing their lips as he was tripped up in cross-examination. In truth, the defendants were rarely tripped up, because they all stuck broadly to the same line: they were merely simple, patriotic businessmen or scientists engaged in tasks for the benefit of others. Every incriminating document had an alternative explanation; every prosecution witness was misguided or sadly misinformed. When the questioning became too rigorous they fell back on simple protestations of ignorance. No, they had never seen the report the prosecution was referring to. No, they had no recollection of that meeting. If one of their colleagues had told them such a thing, they could not remember it. It was all such a long time ago. And then, when released from the stand, they would go back to their places in the dock and, after a few whispered asides to their colleagues, reassume their pose of slightly weary detachment. It was as though they were being forced to sit through shareholders’ questions at an annual general meeting, a tiresome duty that had to be endured.
But twenty-three men, especially men who had sometimes been keen rivals in the past, could not spend months in one another’s company without some cracks beginning to show. Prosecutors soon realized that Carl Krauch, who was sitting in the same seat that Hermann Göring had once occupied, was being ignored by many of the others—presumably because they preferred not to be tarnished by his close association with his Nazi mentor. The exception was Max Ilgner, who still seemed in awe of his colleague’s former position in the Reich and often tried to engage him in conversation. But then Ilgner kowtowed as well to his uncle Hermann Schmitz, even though he was also now a much reduced figure. Habit, more than respect, forced the others to step aside as the Vorstand chairman entered and left the court, and some shook their heads at his ill-fitting suit and unkempt goatee beard as though his disheveled appearance were letting them down, but Ilgner would often rush to hold the door open for him and carry his papers. Fritz ter Meer, however, seemed to exercise the most authority, dominating many of their huddled conversations over lunch and during the brief walk to and from court. He largely ignored von Schnitzler now that the question of his pretrial testimony was apparently no longer so crucial, but when he learned that Schmitz might have made damaging admissions as well (for example, during an early pretrial interrogation Schmitz had conceded it was “absolutely clear” the IG’s swollen profits were due to Hitler’s armaments program), ter Meer wrote to the American authorities in an attempt to discredit his former boss’s recall of events. In regard to one statement Schmitz had reportedly made about the Berlin NW7 office’s close relationship with the Wehrmacht, ter Meer wrote that it “had caused great concern among the entire group of IG Farben leaders since it was believed that it contained wrong conclusions.” He helpfully offered to set the record straight.
Josiah DuBois got an insight into just how keen Fritz ter Meer was to “set the record straight” when he and Jan Charmatz, a Czech legal associate attached to the prosecution team, were walking around the Palace of Justice grounds after dinner one night. A figure approached them out of the dark. It was Erich Berndt, ter Meer’s attorney. To the lawyers’ considerable astonishment, he asked for their help “with a little problem.” Clearly embarrassed, he then took a step to one side to reveal his client, who was calmly smoking a cigarette and studiously avoiding their eyes. Unknown to the prosecution, the judges had allowed him to leave the jail, unguarded but in the company of his lawyer, in order that he might visit Frankfurt to pick up some papers connected to his defense. Unfortunately, Berndt explained, the new night guard at the front gate of the jail hadn’t recognized them on their return and wouldn’t let the IG executive back in. Could they help?
Not knowing whether to explode in fury or collapse in laughter, the prosecutors promised to do all they could to ensure ter Meer’s readmission. Before he was led back to his cell, he bowed and thanked them gravely for their assistance.
It was only much later that DuBois found out what ter Meer had actually been doing in Frankfurt. Instead of
looking for his papers, he had angrily summoned Ernst Struss, his former assistant, and confronted him with rumors that Struss had given the prosecution an affidavit saying that he, ter Meer, had known of the slave conditions at Auschwitz. Was this true?
“I only told them,” Struss replied, “that in 1943 I had asked you why so many people were being gassed and burned at Auschwitz.”
Ter Meer shot to his feet. “You what? You told them that!”
He then tried to persuade Struss that had he ever been asked such a thing, he surely would have told Struss not to pay any attention to rumors. But Struss insisted on sticking to his story. In fact, as far as he could recollect, ter Meer had just ignored him back in 1943, presumably because he knew they were not rumors at all.
Whether Berndt knew about this blatant attempt to influence a witness is not clear, but for the sixty or so defense lawyers the question of Auschwitz and what the defendants knew about it was always going to be a major problem. They had grasped, of course, that at least two of the judges were not well disposed toward DuBois and his team, and they had deliberately added to the judges’ irritation by making their own considerable fuss over the complexity and supposed irrelevance of the evidence that was being introduced in court. The intention was plainly to convince the judges that the U.S. case lacked clarity and focus. The prosecution’s strategy had been predicated on showing that the defendants had known in advance of Hitler’s plans to launch an aggressive war of conquest and had been willing and active accomplices in achieving that aim. Everything else the IG had done followed from this original complicity: its propaganda and espionage on the regime’s behalf, its production of war goods, its spoliation and plunder of invaded countries, its role in slave labor and the concentration camps. But the defense consistently challenged the prosecution’s interpretation of events, questioned the relevance of its evidence, and portrayed the accused as misguided patriots who had merely been following orders. By thus exploiting any doubt in the judges’ minds, the defense hoped to secure acquittals.
* * *
AUSCHWITZ THREATENED to undermine the defense’s plan. The whole world now knew of the part that the camps had played in the Nazis’ attempts to exterminate the Jewish race. The genocide was so shocking, so dreadful that anyone or anything associated with it could not fail to be tarnished. If the judges believed the allegations about the IG’s involvement in slavery, torture, selection, and murder, their disgust might be so great that their uncertainty about other aspects of the prosecution case would fall away. Auschwitz was going to make or break the case.
Several of the prosecution team had come to the same conclusion and now realized that it had been a mistake not to begin the trial with the slavery and murder count. Indeed both Drexel Sprecher and Duke Minskoff urged Josiah DuBois to change tack. As Minskoff said of the judges, “Then they will see what kind of men they are trying and they’ll understand the rest of it. We should have started with Auschwitz on the first day.” But DuBois believed that it wasn’t that simple. Everything in the case—witnesses, documentary evidence—had been set up to follow the order of the counts in the indictment. To stop and start again would cause expense, confusion, disruption, and delay that would only infuriate the impatient judges still further.
As a result, the most important moment of the trial wasn’t reached for several months; but it also meant that when that moment arrived, it did do so with a bang. The prosecution had found a host of credible witnesses prepared to testify in support of the slavery and mass murder charges—Jewish survivors, former POWs, doctors, conscience-stricken IG employees—and had gathered written affidavits from scores more. They now began to reveal them in court.
The Norwegian Kai Feinberg told the court how his father and uncles had died:
We unloaded boxcars, iron poles and bags containing cement, as well as heavy ovens. On 5 January 1943, my father was already so weakened that when we had to drag a 50-kilogram bag at doubled pace he collapsed before my very eyes. He was carried to the camp by his comrades. He had been beaten constantly by the guards, and this most severely on the last day.… He died in my presence on 7 January 1943. One brother of my father injured his right arm during work, and he was gassed. The second brother of my father had become so weak that he died while at work, about one or two weeks after my father in Buna. I myself was able to stand the work until 15 January 1943; then I contracted pneumonia.
Ervin Schulhof, a Czech inmate, testified about the concern’s involvement in selections:
The master craftsman made the complaint to the management, and from there the complaint was forwarded to the SS. Consequently the labor-allocation officer went to Monowitz early in the morning when the squads left for work, posted himself near the gate, and picked out those people whom they considered sickly. These people were sent straight away [to Birkenau]. Those written complaints came from the IG. I myself have seen such reports.
Leon Staischak, a Polish inmate, was a male nurse in the camp infirmary: “The hospital of the IG Camp Monowitz had merely the task of repairing tools.… Prisoners were not permitted to remain in the hospital longer than two weeks. Prisoners who were too weak or sick to be restored within two weeks were picked out.”
Then there was Rudolf Vitek, a doctor and an inmate: “The prisoners were pushed in their work by the kapos, foremen, and overseers of the IG in an inhuman way. No mercy was shown. Thrashings, ill treatment of the worst kind, even outright killings were the norm. The murderous working speed was responsible for the fact that, while working, many prisoners suddenly stretched out flat, gasped for breath, and died like beasts.”
British POWs Robert Ferris, Leonard Dales, Frederick Davidson, Eric Doyle, John Adkin, Bert Seal, Horace Charteris, Charles Hill, Arthur Greenham, and Charlie Coward were called to the stand to describe in gruesome detail the shootings and beatings they witnessed at the Buna-Werke and to tell how everyone at the plant and its camps had known what was happening at Birkenau. As Charlie Coward explained: “Everyone to whom I spoke gave the same story—the people in the city, the SS men, the concentration camp inmates, foreign workers. All the camp knew it. All the civilian population knew it; they complained about the stench of burning bodies. Even among the Farben employees to whom I spoke, a lot of them would admit it. It would be utterly impossible not to know.”
Some of the most compelling testimony came from IG employees who had worked at the plant, men like engineer Norbert Jaehne, whose own father was among the defendants: “Of all the people employed in IG Auschwitz the inmates received the worst treatment. They were beaten by the kapos, who in their turn had to see to it that the amount of work prescribed them and their detachments by the IG foremen was carried out, because they otherwise were punished by being beaten in the evening in the Monowitz camp.”
Even Ernst Struss, the assistant whom Fritz ter Meer had so recently tried to intimidate, made it into court:
COUNSEL: The chief engineer [Dürrfeld] of the Buna plant with whom you spoke in 1943, did he specifically tell you that people were being burned at Auschwitz?
STRUSS: Yes, I think he told me that before the burning they were gassed.…
COUNSEL: And in the summer of 1943 you knew that people were being burned and gassed?
STRUSS: Yes.
COUNSEL: And to the best of your recollection you told that to Ambros and ter Meer?
STRUSS: Yes.
The complacency that some of the defendants had shown so far was badly rocked by these testimonies. According to one observer, Otto Ambros kept closing his eyes during this part of the trial as though he were trying to shut out the revelations. Walter Dürrfeld sat there shaking his head, visibly sweating, as the evidence mounted against him. But of course it was the prosecution’s contention that everyone in the dock was guilty of the same crimes, be they the medical experiments carried out in the IG’s name, the beatings, starvation, abuse, and murder of inmates at the Buna-Werke and the IG’s mines at Fürstengrube, or the use of forced labor at p
lants elsewhere in Poland and Germany. They were guilty because of their personal involvement in the camp and construction site, or because their collective authorization and approval had created circumstances under which the abuses had taken place, or because they had known of such abuses and done nothing to stop them. In other words, Carl Wurster and Erich von der Heyde and Paul Haefliger were just as responsible for what had happened at IG Auschwitz as Ambros, Dürrfeld, ter Meer, Bütefisch, Mann, or any of the other senior executives who had a more direct connection with the Buna-Werke. Given the powerful and dramatic evidence now flowing into the court, this was a difficult argument to dismiss and not surprisingly the defendants seemed deeply disturbed.
The defense tried its best to mitigate the effects of this barrage by introducing into evidence 386 witness affidavits aimed at showing that the IG had neither known nor approved of what was taking place at Auschwitz or (more perversely) that the events had never occurred at all. Unable because of limited time to question them all, the prosecution called into court the fifteen defense witnesses who had actually been at Auschwitz—some of them convicted German criminals with privileged jobs at the camp—and then tore them apart. Duke Minskoff’s cross-examination of one of them, Gerhard Dietrich, was a classic of its kind.
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