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.
* * * * *
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[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.