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.