We recognize that in territory under belligerent occupation the military authorities of the occupant may, under the laws and customs of war, punish local residents who engage in fifth column activities hostile to the occupant. It must be conceded that the right to punish such activities depends upon the specific acts charged and not upon the name by which these acts are described. It must also be conceded that Poles who voluntarily entered the Alt [old] Reich could, under the laws of war, be punished for the violation of nondiscriminatory German penal statutes.
These considerations, however, do not justify the action of the Reich prosecutors who in numerous cases charged Poles with high treason under the following circumstances: Poles were charged with attempting to escape from the Reich. The indictments in these cases alleged that the defendants were guilty of attempting, by violence or threat of violence, to detach from the Reich territory belonging to the Reich, contrary to the express provisions of section 80 of the law of 24 April 1934. The territory which defendants were charged with attempting to detach from the Reich consisted of portions of Poland, which the Reich had illegally attempted to annex. If the theory of the German prosecutors in these cases were carried to its logical conclusion it would mean that every Polish soldier from the occupied territories fighting for the restoration to Poland of territory belonging to it would be guilty of high treason against the Reich and on capture, could be shot. The theory of the Reich prosecutors carries with it its own refutation.
Prosecution in these cases represented an unwarrantable extension of the concept of high treason, which constituted in our opinion a war crime and a crime against humanity. The wrong done in such prosecutions was not merely in misnaming the offense of attempting to escape from the Reich; the wrong was in falsely naming the act high treason and thereby invoking the death penalty for a minor offense.
MEMBERSHIP IN CRIMINAL ORGANIZATIONS
C. C. Law 10, article II, paragraph 1(d), provides:
“1. Each of the following acts is recognized as a crime:
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“(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.”
Article 9 of the IMT Charter provides:
“At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.”