a. Introduction
The defense argued that Poland lost its sovereignty as a result of the complete occupation of Polish territory and the cessation of Polish military resistance in September 1939 and held that in consequence Germany could treat Polish nationals according to German law. An extract from the closing statement of the prosecution on this point appears on page 975. The argument, that international law concerning belligerent occupation was thus not applicable to the treatment of Polish nationals, appears in the extracts from the final plea for defendant Gebhardt on pages 976 to 979.
b. Selection from the Argumentation of the Prosecution
EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION[[158]]
In the case of some of the defendants, and this is especially true with respect to Gebhardt, Fischer, and Oberheuser in connection with the sulfanilamide experiments, it is to be expected that the argument will be made that crimes against Polish, and perhaps also Czech nationals, do not constitute war crimes within the meaning of Control Council Law No. 10. This argument is based upon the proposition that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war because Germany had completely subjugated those countries and incorporated them into the German Reich, and therefore Germany had the authority to deal with the occupied countries as though they were part of Germany. Thus, the defense placed in evidence the Russo-German Boundary and Friendship Treaty of 28 September 1939 as well as certain German decrees concerning the administration of occupied Poland. (Gebhardt 14, Gebhardt Ex. 13; Gebhardt 15, Gebhardt Ex. 14; Gebhardt 16, Gebhardt Ex. 15.) Without stopping to argue the point that that part of Poland administered by the so-called General Government, from which the Polish subjects for the sulfanilamide experiments came, was never incorporated into the Reich, it will be sufficient to point out that this argument was disposed of by the International Military Tribunal. In its judgment, the following was said:[[159]]
“In the view of the Tribunal, it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September 1939.”
The argument also has no validity with respect to Czech nationals. The International Military Tribunal said that:
“As to war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them.”[[160]]
c. Selection from the Argumentation of the Defense
EXTRACT FROM THE FINAL PLEA FOR DEFENDANT
GEBHARDT[[161]]
The Legal Status of the Experimental Subjects
“Inmates of the Ravensbrueck concentration camp who had been sentenced to death by German courts martial in the General Government as members of the Polish Resistance Movement were employed as experimental subjects (in the sulfanilamide experiments).” The witnesses questioned in Court and all experimental subjects from whom the prosecution has submitted affidavits have openly professed their membership of the Resistance Movement and it must be added that some of them exercised relatively important functions in the Resistance Movement. If the legal status of the experimental subjects at the time of their activity in the Resistance Movement is examined, the result will be as follows:
LEGAL STATUS OF POLAND
The former Polish State ceased to exist as an independent subject from the point of view of international law at the latest on 28 September 1939. After the entire area of the former Polish State had been occupied by the German armies and the troops of the Soviet Union, and the Polish Government had gone into Romanian territory under pressure of the invasion of the Red Army on 17 September 1939, the two occupational powers decided to carry out a plan previously agreed upon which was to settle all matters concerning the territory of the former Polish State without interference by any other powers. This was brought about by the German-Soviet Boundary and Friendship Pact of 28 September 1939. (Gebhardt 14, Gebhardt Ex. 13.) I refer to the contents of the pact for particulars. It was on this day, at the very latest, that Poland ceased to exist as a sovereign state and as bearer of rights and duties. Due to war, the former Polish State ceased to exist as a state and therewith as a subject from the point of view of international law.
The territory of the former Polish State, insofar as it fell within the sphere of Soviet interests, became part of the U. S. S. R., to which it still belongs today.
The Polish territory, which fell into the German sphere of interests and which is designated in detail in the Supplementary Protocol to the German-Soviet Boundary and Friendship Pact, became either part of the German Reich or—and this concerned the larger part of the area—was made into an independent borderland of the German Reich under the designation General Government. The constitutional laws governing this territory were based on the Decree for the Administration of the Occupied Polish Territory issued on 12 October 1939 by the Fuehrer and Reich Chancellor. I have presented the decree to the Tribunal as Document Gebhardt 15, Gebhardt Exhibit 14. Article 4 of this decree states that Polish law was to continue to be valid insofar as it was not at variance with the taking over of the administration by the German Reich. Article 5 gives the Governor General the right to issue laws by ordinance for the territory under his administration.
Corresponding to the generally acknowledged principles of international law the ordinances issued by the Governor General were binding for the population of this territory. This is especially true of the Ordinance for Combating Deeds of Violence in the General Government, which was issued on 31 October 1939 (Ordinance Gazette for the General Government, page 10), and which also laid the foundation for the competence of the courts martial. This ordinance had become necessary because the military government, which had been active until 26 October 1939, ceased to exist when the Fuehrer Decree of 12 October 1939 became valid.
In this connection, the following reply must be made to the objection of the prosecution in their final plea on the morning of the 14th.
First: No Polish Government was in existence when these experimental subjects were working for the Resistance Movement in 1940 and 1941. The Polish Government had ceased to exist as an independent subject under international law. The government in exile in London under General Sikorski and the government in Lublin were only subsequently recognized by the Western Allies.
Second: When the experimental subjects were working for the Resistance Movement in 1940, no Polish Army in combat existed.
Third: The prosecution seems to have endeavored to express that this Military Tribunal should not primarily apply territorial penal law but the principles of international law. For this very reason the prosecution pointed out that the jurisdiction and the judicial authority within the General Government were the consequence of an aggressive war and could not, therefore, be legally recognized. This concept does not apply. It must first be pointed out that the principles of international law, which have the function to regulate legal issues during war, make no distinction between an aggressive war, a defensive war, or a justified war. This is particularly stated in the Fourth Hague Convention of 1907, the so-called Hague Land Warfare Convention.
The objection of the prosecution is not justified for another reason. The evidence before the IMT showed that the attack on Poland was carried out by Germany in at least the same manner as it was carried out by the U.S.S.R., and that this becomes quite evident from the contents of the German-Soviet secret treaty of 23 August 1939. Nevertheless the U.S.A. did not hesitate to recognize the territorial claims made by the U.S.S.R. in the area of the former Polish State. This recognition took place de facto as well as de jure during the Yalta Conference in February 1945 and the Potsdam Conference on 2 August 1945.
The prosecution cannot therefore object today to this state of affairs as far as the legal issues arising from this attack are concerned.
The Ordinance for Combating Acts of Violence in the General Government and the introduction of the courts martial connected with it would, by the way, have been permissible, even if though the former Polish State had not ceased to exist as a subject in the realm of international law. Military occupation of foreign states (occupatio bellica), too, gives the occupying power the right to take all the measures necessary for the maintenance of order and safety. It is a generally acknowledged legal conception that in this case the occupying power takes over the power of the conquered state, not as its deputy, but rather by authority of its own laws guaranteed by international law. The right is expressly acknowledged in the third section of the Hague Convention for Land Warfare [Section III, Annex to the Convention]. There can be no doubt that the introduction of courts martial is one of these rights of the occupying power. In fact it seems inconceivable that an occupying power should not be allowed to take measures for the effective combating of a resistance movement, whose sole and openly admitted purpose it was to undermine and destroy the authority of the occupying power and the safety of the occupation troops. The right to do this can be contested even less in our case, since with the outbreak of the German-Soviet war, the territory of the former General Government became the largest military transit area which has ever existed in the history of war. The methods by which the Polish Resistance Movement tried to attain its goals do not need to be examined here in detail. It is sufficient to point out that the Resistance Movement was in a position to interfere to a considerable extent with German Army reinforcements against the Red Army; this interference took the form of blasting of bridges, transmission of important military information, etc. The Polish women used for the sulfanilamide experiments were members of this Resistance Movement and they supported it wherever they could. However much we respect the courage and patriotism of these women, we cannot refrain from emphasizing the fact that they violated laws which at that time were binding for them. This violation gave the occupation power the right to impose adequate punishment upon them. It seems unthinkable that the members of a resistance movement such as the Polish one would not have been sentenced to death during the war for their resistance activities by any other state which found itself in a position similar to that of Germany at that time. Latest developments show that the occupation powers in Germany now do not hesitate to impose the most severe penalties in similar cases.
For example, the American Military Government for Germany in its Ordinance No. 1, which was issued to insure the safety of the Allied Armed Forces and to reestablish public order in the territory occupied by them, lists, among others, the following acts as crimes punishable by death:
Communication of information which may be dangerous to the security or property of the Allied Forces, or unauthorized possession of such information without promptly reporting it; and unauthorized communication by code or cipher;
Interference with transportation or communication or the operation of any public service or utility;
Any other violation of the laws of war or act in aid of the enemy or endangering the security of the Allied Forces.
A comparison of these regulations with the contents of the court martial regulations of the Governor General for the Occupied Polish Territories, presented in Document Book II for the defendant Gebhardt, shows clearly that here generally the same facts were declared to be punishable with the death sentence.
In order to exclude any doubts with regard to the legal status of the experimental subjects, it may be pointed out in conclusion that the members of the Polish Resistance Movements, at least when the prisoners belonged to these movements, did not fulfill the conditions of Article I of the Hague Convention for Land Warfare of 1907 [Section I, Chapter I, Annex to the Convention] concerning militia and voluntary corps not affiliated with the army and having a certain military organization. The Polish Resistance Movement at that time (1) had no leader who was ostensibly at its head and responsible for the conduct of the members; (2) it wore no particular badge recognizable from a distance; (3) it did not wear its arms openly; and finally, (4) in its conduct of war it disregarded the laws and practices of war. In view of these facts the members of the Resistance Movement could not have been treated as prisoners of war even if at that time a Polish Army had still been in the field. In view of the fact that the prisoners in question were women serving in the communications and espionage branches of the Resistance Movement, this possibility was eliminated from the very beginning.
[158] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.
[159] Trial of the Major War Criminals, vol. I, p. 254, Nuremberg, 1947.
[160] [Ibid.]
[161] Final plea is recorded in mimeographed transcript, 15 July 1947, pp. 10874-10911.