“State orders, whether they lay down rules or decide individual cases, can always be measured against the existing written and unwritten law, but also against the rules of international law, morals, and religion. Someone, even if only the conscience of the person giving the orders, is always asking: Has the person giving the order ordered something which he had no right to order? Or has he formed and published his order by an inadmissible procedure? But an unavoidable problem for all governmental systems lies in this: Should or can it grant the members of its hierarchy, its officials and officers, the right—or even impose on them the duty—to examine at any time any order which demands obedience from them, to determine whether it is lawful, and to decide accordingly whether to obey or refuse? No governmental system which has appeared in history to date has given an affirmative answer to this question. Only certain members of the hierarchy were ever granted this right; and they were not granted it without limits. This was also the case, for instance, under the extremely democratic constitution of the German Reich during the Weimar Republic and is so today under the occupation rule of the four great powers over Germany.
“In as far as such a right of examinations is not granted to members of the hierarchy, the order has legal force for them.
“All constitutional law, that of modern states as well, knows acts of state which must be respected by the authorities even when they are defective. Certain acts of laying down rules, certain decisions on individual cases which have received legal force, are valid even when the person giving the order has exceeded his competence or has made a mistake in form.
“If only because the process of going back to a still higher order must finally come to an end, orders must exist under every government that are binding on the members of the hierarchy under all circumstances and are therefore law where the officials are concerned, even if outsiders may see that they are defective as regard content or form * * *.
“* * * The result of the development in the Reich of Hitler was at any rate that Hitler became the supreme legislator as well as the supreme author of individual orders. It was not least of all under the impression of the surprising successes, or what were considered successes in Germany and abroad, above all during the course of this war, that he became this. Perhaps the German people are—even though with great differences between north and south, west and east—particularly easily subjected to actual power, particularly easily led by orders, particularly used to the idea of a superior. Thus the whole process may have been made easier.
“Finally the only thing that was not quite clear was Hitler’s relationship to the judiciary. For, even in Hitler-Germany, it was not possible to kill the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the wide masses in their everyday life. Up to the highest group of Party officials—this has been shown by some of the speeches of the Reich Justice Leader, the defendant Dr. Frank, which were submitted here—there was resistance, which was actually not very successful, when justice in civil and ordinary criminal cases was also to be forced into the “sic jubeo” of the one man. But, apart from the judiciary, which was actually also tottering, absolute monocracy was complete. The Reichstag’s pompous declaration about Hitler’s legal position, dated 26 April 1942, was actually only the statement of what had become practice long before.
“The Fuehrer’s orders were law already a considerable time before this Second World War.
“In this state order of his, the German Reich was treated as a partner by the other states, and this in the whole field of politics. In this connection I do not wish to stress the way (so impressive to the German people and so fatal to all opposition) in which this took place in 1936 at the Olympic Games, a show which Hitler could not order the delegations of foreign nations to attend, as he ordered Germans to the Nuernberg Party Rally in the case of his state-shows. I should like rather only to point out that the governments of the greatest nations in the world considered the word of this “almighty” man the final decision, incontestably valid for every German, and based their decisions on major questions on the fact that Hitler’s order was incontestably valid. To mention only the most striking cases, this fact was relied upon when the British Prime Minister, Neville Chamberlain, after the Munich Conference, displayed the famous peace paper when he landed at Croydon. This fact was adhered to when people went to war against the Reich as the barbarous despotism of this one man.
“No political system has yet pleased all people who live under it or who feel its effects abroad. The German political system in the Hitler era displeased a particularly large and ever-increasing number of people at home and abroad.
“But that does not in any way alter the fact that it existed, not lastly because of the recognition from abroad and because of its effectiveness, which caused a British Prime Minister to make the now world-famous statement at a critical period, that democracies need two years longer than the totalitarian governments to attain a certain goal. Only one who has lived as if expelled from among his own people, amidst blindly believing masses who idolized this man as infallible, knows how firmly Hitler’s power was anchored in the anonymous and innumerable following who believed him capable only of doing what was good and right. They did not know him personally, he was for them what propaganda made of him, but this he was so uncompromisingly that everybody who saw him from close-to and saw otherwise, knew clearly that resistance was absolutely useless and, in the eyes of other people, was not even martyrdom.
“Would it therefore not be a self-contradictory proceeding if both the following assertions were to be realized at the same time in the rules of this trial? * * *
“* * * The functionaries had neither the right nor the duty to examine the orders of the monocrat to determine their legality. For them these orders could not be illegal at all, with one exception which will be discussed later—an exception which, if carefully examined, is seen to be only an apparent one—namely with the exception of cases in which the monocrat placed himself, according to the indisputable values of our times, outside every human order, and in which a real question of right or wrong was not put at all and thus a real examination was not demanded.
“Hitler’s will was the ultimate authority for their considerations on what to do and what not to do. The Fuehrer’s order cut off every discussion. Therefore, a person who, as a functionary of the hierarchy refers to an order of the Fuehrer’s, is not trying to provide a ground for being exempted from punishment for an illegal action, but he denies the assertion that his conduct is illegal; for the order which he complied with was legally unassailable.
“Only a person who has understood this can have a conception of the difficult inner struggles which so many German officials had to fight out in these years in face of many a decree or resolution of Hitler’s. For them such cases were not a question of a conflict between right and wrong: Disputes about legality sank into insignificance. For them the problem was one of legitimacy; as time went on, human and divine law opposed each other ever more strongly and more frequently.
“Therefore, whatever the Charter understands by the orders which it sets aside as a ground for exemption from punishment, can the Fuehrer’s order be meant by this? Can it come within the meaning of this rule? Must one not accept this order for what it was according to the interior German constitution as it had developed, a constitution which had been explicitly or implicitly recognized by the community of states? * * *
“* * * The one supreme will became, quite simply, technically indispensable. It became the mechanical connecting link for the whole. A functionary who met with objections or even resistance to one of his orders from other functionaries only needed to refer to an order of the Fuehrer’s to get his way. For this reason many, very many, among those Germans who felt Hitler’s regime to be intolerable, who indeed hated him like the devil, looked ahead only with the greatest anxiety to the time when this man would disappear from the scene; for what would happen when this connecting link disappeared? It was a vicious circle.
“I repeat: An order of the Fuehrer’s was binding—and indeed legally binding—on the person to whom it was given, even if the directive was contrary to international law or to other traditional values.”
So much for the statements of Professor Jahrreiss before the International Military Tribunal. The development presented here seems to be particularly relevant for the case of the defendant Fischer, since he himself in the witness box described his attitude towards the Fuehrer’s command in a way which, because of his very youth, his idealistic conception of life and duty and his manly confession, was particularly convincing.
It is true that in the face of all this, reference will be made to Article 8 of the Charter for the International Military Tribunal which reads: “The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”
Accordingly, Law No. 10 of the Control Council, Article II, paragraph 4 reads—
“(b) The fact that any person acted pursuant to the orders of his government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.”
In the face of this objection the following is to be pointed out:
At the time of their actions the defendants were subject to German law according to which the degree of their responsibility was determined and, even today, must justly be referred back to that moment. The following should be emphasized, however, in case the Tribunal should not apply the legal provisions in force at the time of the act, but should base its judgment on Law No. 10 of the Control Council, though it represents a manifest violation of the prohibition of retroactive application of penal laws.
Even from the above-named provision of the Law of the Control Council, the principle cannot be derived that every command of a superior should, under the aspect of Penal Law, be irrelevant under all circumstances. This also applies to the problem of the exemption from responsibility and exemption from penalty. The provision only states that the existence of such a command in itself does not exempt one from the responsibility for a crime; it does not, however, preclude by any means that in connection with other facts it may be relevant for this problem as well.
The guiding legal aspect underlying these deliberations is contained in the concept of the so-called conflict of duties which has been repeatedly mentioned before. This aspect does not coincide eo ipso with the “objective” principle of balancing interests, as discussed in examining the case of the defendant Karl Gebhardt. In addition one must insist on consideration of the “subjective” position of the person committing the act.
In other words, in order to arrive at a just appreciation of the case, the personal situation of the person committing the act at the moment of its being committed will have to be weighed up as well. This applies particularly to the personal situation into which the person committing the act has been put by reason of a higher command which is binding for him and influences him. Besides the general “objective” principles of balancing interests, such a special “subjective” state of coercion can and must therefore be considered in his favor also. A “command” can, therefore, according to the concrete situation, shift the boundaries of culpability further in his favor.
Reinhardt Frank, the great German criminologist, has with regard to the problem of the so-called conflict of duties established the maxim, “In as far as the conflict of duties has not been expressly regulated the maxim should prevail that the higher, the more significant, the more important duty is to be fulfilled at the expense of the less high one and that, therefore, omission to fulfill the latter one is not contrary to law.”
With good reason it has always been emphasized that in such a situation of conflict of diversified duties the decision is, in the end, not to be found in positive law, but it is of an ethical nature. That is why, in such a situation, a certain leeway must be left to the personal conscience; it is not possible here to arrive at everything through the coarse means of an outward penal provision. This completely “personal” character of genuine ethical conflicts has also been fully recognized and emphasized in the authoritative philosophical literature. Nicholai Hartmann, Ethics (2d Edition, 1935, pp. 421-422) says for instance, with regard to genuine conflicts of values:
“It is a fateful error to believe that such problems can be solved on principle in theory. There are border-line cases in which the conflict in conscience is grave enough to require a different solution according to the particular ethos of the person. For it lies in the very nature of such conflicts that values are balanced, and that it is not possible to emerge from them without becoming guilty. Accordingly, a man in this situation cannot help making a decision. A person faced with this serious conflict, incurring such a measure of responsibility, ought to decide this—
“To follow the dictates of his conscience to the best of his ability, that is, according to his own live sense of the level of values and accept the consequences.”
No further argument should be needed for demonstrating that just from an ethical point of view measuring of such personal decisions by standards of penal law is out of the question.
| Testimony | |
| Page | |
| Extracts from the testimony of defendant Karl Brandt | 970 |
| Extract from the testimony of defendant Rose | 973 |
EXAMINATION
Judge Sebring: * * * Witness, for the sake of clarification, let us assume that it would have been highly important to the Wehrmacht to ascertain, as a matter of fact, how long a human being could withstand exposure to cold before succumbing to the effects of it. Do you understand that? Let’s assume secondly that human subjects were selected for such freezing experiments without their consent. Let’s assume thirdly that such involuntary human subjects were subjected to the experiments and died as a direct or indirect result thereof. Now, would you be good enough to inform the Tribunal what your view of such an experiment is—either from the legal or from the ethical point of view?
Defendant Karl Brandt: I must repeat once more, in order to make sure that I understood you correctly. When assigning the experiment the following things are assumed: highest military necessity, involuntary nature of the experiment, and the danger of the experiment with eventual fatality. In this case I am of the opinion that, when considering the circumstances of the situation of the war, this state institution which has laid down the importance in the interest of the state at the same time takes the responsibility away from the physician if such an experiment ends fatally and such a responsibility has to be taken by the state.
Q. Now, does it take away that responsibility from the physician, in your view, or does it share that responsibility jointly with the physician, in your view?
A. In my view, this responsibility is taken away from the physician because, from that moment on, the physician is merely an instrument maybe in the same sense as in the case of an officer who receives an order at the front and leads a group of three or four soldiers into a position where they are certain to meet death. That position, if I apply it to German conditions during the war, is in principle the same. I don’t believe that the physician as such, from his ethical and moral feelings, would carry out such an experiment without this assurance of the authoritarian state which gives him a formal and legal assurance on one side and, on the other side, gives him the order for the execution. Naturally, in this case, it is a theoretical question since I cannot survey the position in the case of the freezing experiment. I don’t know how this assurance was given and how the order was given. Basically, I want to differentiate between the order for an experiment which arises from medical needs as such and where, under the circumstances, the state only has a secondary interest on the basis of medical initiatives, and I would differentiate between the reverse state of affairs where the state uses medical activities.
Q. The Tribunal has one further question of interest.
In your view, would an order which authorized or directed a subordinate medical officer or subordinate medical group to carry on a certain medical experiment—let us assume for the moment this freezing experiment—we have then a general order, let us assume, directing a certain institute to carry on freezing experiments without delineating or specifying in detail the exact course of those experiments. Would you conceive that such an order would authorize the medical officer to whom the order was addressed to select subjects involuntarily and subject them to experiments, the execution of which that officer absolutely knew or should have known would likely result in death to the subject?
A. May I have your last sentence repeated, please? This question is extremely difficult to answer. The order given in such a case has to be taken into consideration. May I, perhaps, answer with an example of such an order. If Himmler gives an order to a Dr. “X” and tells him to carry out a certain experiment, then it is possible that Dr. “X” did not wish to comply with this order. In such a case, however, Dr. “X” will not have overlooked the importance of the experiment itself, the same way as the lieutenant who received a certain military order—and we are here concerned with a military order—does not overlook that he would have to hold out with a group of eight men at a bridgehead and that this would end in his death. In spite of that, this officer with his eight men to whom he passed this order on would meet their death at that position. So this physician “X” who received this order from Himmler would under the circumstances have to carry out an experiment without being able to judge the validity of the reasons which prompted a central agency.
If a physician had not carried out that experiment, he would have got into a position where he would be called to account if he had not carried out that experiment. In this case, and there we have to consider the authoritarian nature of our state, the personal feeling and the feeling of a special professional, ethical obligation has to subordinate itself to the totalitarian nature of the war.
I must say once more, these are theoretical assumptions which I am expressing here. At the same time I could express how difficult such decisions are if I refer to an example which recently was quoted here, and I mean the eight hundred inmates in a prison in America who were infected with malaria. I don’t want to refer to this example in order to justify the experiments which are under indictment here, but I want to express that the question of the importance of an experiment is, and remains, basically of decisive importance. Even there a certain number of fatalities had to be expected from the start when infecting eight hundred people with malaria.
The voluntary attitude which an inmate adopts and with which an inmate makes himself available is a relatively voluntary agreement. I don’t think it would be the same if one were to receive a voluntary agreement from people who are present here. One has to consider the nature of the voluntary agreement. In my opinion, this round figure of eight hundred speaks against the voluntary agreement of all. I would assume that if it was seven hundred and thirty-five or seven hundred and forty, it would be different, but the round figure of eight hundred seems to indicate that there was a certain order for the experiment before the beginning of the experiment, and these experiments, too, were directed from the point of view of a superior state interest, and this superior state interest, at the same time, takes over the responsibility for the result of the experiment with reference to the experimental subject. For responsibility in a medical sense cannot be assumed at all since even a negative series of experiments speaks against the urgency and necessity of these experiments; and particularly when answering the question about voluntary or involuntary, dangerous or nondangerous natures, it is very difficult and almost impossible to say basically with reference to experiments that experiments on human beings, taking all these things into consideration, are a crime or are not a crime. The question can only be judged when over and above the expected result experiments are still continued. If a result has been established and further experiments on human beings are then carried out, they are not important, and the experiment which is not important is only a dilettante experiment. In that case I would from the start assume the word “criminal,” but when dealing with important experiments, it is necessary to take into consideration all the circumstances which played a part at that time; that is to say, the important experiments, from the moment a result is achieved, become unimportant. From that moment on, in my opinion, the experiment is criminal. Therefore, that when speaking about human experiments at all, one must put the results at the disposal of the state—not only to one state but internationally—so that experiments which are carried out in Russia and which had shown results would not be continued in other countries.
With reference to freezing experiments, I can only say that in a certain form, without saying “criminal” or “not criminal,” they showed their value. The indication for that is that the results in the American Air Force were considered as something extraordinary and helped the American Air Force to gain years, and I think that these experiments would also be of use in mines, where a number of fatalities occur because of freezing. If you consider the freezing experiments in that light, the victims in effect are tragic and are to be regretted, but with reference to subsequent periods these victims are a real sacrifice, for hundreds, or maybe thousands of people might save or prolong their lives because of it.
Q. Dr. Brandt, is it not true that in any military organization, even one of an authoritarian state, there comes a point beyond which the officer receiving an order subjects himself to individual responsibility, at least in the eyes of civilized society, for carrying out any military orders, particularly if the order is unlawful or transcends the limit of extreme military necessity?
A. There was a general law stating that an officer does not have to carry out an order which he realizes is a crime, but the question with reference to these various experiments is whether the man concerned can realize that what he is doing is a crime. If he can realize it, then, in my opinion, he cannot comply with the order.
CROSS-EXAMINATION
Mr. McHaney: And you suggested and asked him [defendant Mrugowsky] to carry out experiments with Copenhagen vaccine in the typhus experiments in Buchenwald, didn’t you?
Defendant Rose: I was asking whether there was still a possibility of carrying out such a series of experiments. That is quite understandable, considering the situation, because one can see from my report of 29 May 1943, that this seemed to constitute a considerable advance on the experiments already made on animals. I knew that such experiments had been carried out earlier, although I basically objected to these experiments. This institution had been set up in Germany and was approved by the state and covered by the state. At that moment I was in a position which might correspond to that of a lawyer who is, perhaps, a basic opponent of capital punishment. On occasions when he is dealing with leading members of the government or with lawyers during public congresses or meetings, he will do everything in his power to maintain his opinion on the subject and have it put into effect. If, however, he does not succeed, he stays in his profession and in his environment in spite of this. Under certain circumstances he may perhaps even be forced to pronounce such a death sentence himself, although he is basically an opponent of the principle. Of course, it does not go as far as this in my case. I am only in touch with people of whom I assume that they somehow are included in the official channels of such an institution, which I disapprove of basically, and which I want to see removed.
Q. Professor, six persons died in this experiment with the Copenhagen vaccine, didn’t they?
A. Yes. They were six people who were furnished by the Reich Criminal Police Office through ordinary channels as determined by competent agencies.
[149] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.
[150] Defendant before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.
[151] Final plea is recorded in mimeographed transcript, 18 July 1947, pp. 11220-11244.
[152] Defendant in case of United States vs. Ernst von Weizsaecker, et al. See Vols. XII, XIII, XIV.
[153] United States vs. Josef Altstoetter, et al. See Vol. III.
[154] Final plea is recorded in mimeographed transcript, 16 July 1947, pp. 10922-10941.
[155] Trial of the Major War Criminals, vol. XVII, pp. 458-494, Nuremberg, 1948.
[156] Complete testimony is recorded in mimeographed transcript, 3, 4, 5, 6, 7 Feb. 1947, pp. 2301-2661.
[157] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 Apr. 1947, pp. 6081-6484.
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.
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]
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.