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insulate the principle corporate officers who approved and authorized
this course of action from any criminal responsibility therefor [sic] is a
leniency in the application of principles of criminal responsibility winch, in
my opinion, is without any sound precedent under the most elementary concepts
of criminal law. It represents a doctrine which should not be permitted to gain
a foothold in the application of criminal sanctions to the acts of individuals
who are charged with such serious infractions of international penal law. The
law does not require the degree of personal participations in the execution of
crimes against international law that I understand the majority opinion to
require. It matters not that, under the division of labor employed by I. G.
Farben, supervision of the Auschwitz project fell in the sphere of immediate
activity of certain of the defendants; that is, ter Meer, Ambros, Buetefisch,
and Duerrfeld. In my view, the Auschwitz project would not have been carried
out had it not have been authorized and approved by the other defendants, who
participated in the corporate approval of the project knowing that
concentration-camp inmates and other slave labor would be employed in the
construction and other work.
We do not have in this case a situation of
complete delegation of authority to subordinates without knowledge of the
criminal character of the action to be undertaken by those granting the
authority for corporate action. We do not here have the situation of
subordinates committing offenses against criminal law on their own initiative
without the knowledge of the corporate officers. Decisions in Anglo-American
law which decline to impose a vacarious [sic] criminal liability in such
situations are not, therefore, strictly in point. There is, however,
respectable authority for the imposition of criminal responsibility where the
defendant was in a position to know and should have known of the illegal action
carried out by a corporation through an agent. An analogy in Anglo-American law
may be found in decisions dealing with the employment of child labor. For
example, in the case of Overland Cotton Mill Co. et al v. People, 32
Colorado 263, 75 Pac. 924 (1904) the conviction of an assistant plant
superintendent for violation of the child-labor laws was sustained by the court
despite the fact that he was not shown to have personally participated in the
hiring of the minor. In discussing the liability of this officer, the court
said: |
| |
“ * * * An agent of a
corporation is presumed to have that knowledge of its affairs particularly
under his control and management which, by the exercise of due diligence, he
would have ascertained * * * He [the assistant superintendent] was engaged at
the mill, and, in the performance of his duties, had the authority to hire and
discharge employees. It thus appears from the testimony that by reason of his
relationship to the company, and the |
1314 |
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