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: