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| null and void."¹ The foregoing fact alone demonstrates that the Polish Government was still in existence and was recognized by the Government of the United States. Sir Arnold D. McNair expressed a principle which we believe to be incontestable in the following words: |
"A purported incorporation of occupied territory by a military occupant into his own kingdom during the war is illegal and ought not to receive any recognition. * * * " ² |
| 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. |
¹ Department of State Bulletin, 4 November 1939, page 468, cited in Hyde's International Law, Volume 1 (2d rev. ed.), page 391.
² "Legal Effects of War" 12d ed.) (Cambridge. 1940), footnote on page 320.
