Commentary on
US Army Field Manua
FM 27-10: The Law of Land Warfare
in relation to the Taiwan status issue
US Army Field Manual
FM 27-10
contains the laws of war
as recognized by the United States.
Chapter 6: OCCUPATION, paragraph 366
Local Governments under Duress
and
Puppet Governments
For over thirty years, US Commander in Chief has been
the ringmaster of a three-ring circus called the "One
China Policy." While it is a clever riddle of foreign policy
to keep the participants in a quandary as they attempt to
peacefully resolve the final status of Taiwan, the legal
circumstances of the US being the paramount authority
and having the ROC continuing as the designated local
administrative authority is the creation of an illegal
situation of possible proxy occupation.
1
Major errors in the post-WWII handing of the
Taiwan question in late 1945 and early 1946 are (1)
the announcement of October 25, 1945, as "Taiwan
Retrocession Day," (2) the mass naturalization of
Taiwanese persons as Republic of China (ROC) citizens,
and (3) (in August 1951) the imposition of mandatory
military conscription laws over native Taiwanese persons.
Such actions in areas under belligerent occupation
constitute war crimes.
2
During the 1940's, the US was still officially sponsoring
the Republic of China (ROC) as the "legal government of
China." The origin of the Taiwan question began with
General Douglas MacArthur's early September 1945
directions to Chiang Kai-shek to go to Taiwan and accept
the surrender of Japanese troops. The Chinese Civil War
period of the late 1940's culminated in the late 1949
Chinese Nationalist (KMT) retreat to Taiwan and its
degeneration into the status of a "government-in-exile".
Meanwhile, the People's Republic of China was founded
on October 1, 1949.
3
During the 1945-47 period, the USA officially maintained about
50,000 U.S. Marines in the China mainland to defend the ROC
against the Chinese Communist Party (CCP) and its Russian
backers. As conditions in Manchuria further deteriorated and the
CCP was coming to power, the KMT secured their base on
Formosa by initially massacring over 30,000 local residents (and
more in the following years) whom were still internationally
regarded as being "Japanese nationals" by the legal fact that during
that era Taiwan was still part of "Japan," and the ROC military
troops in Taiwan were merely fulfilling the role of a "subordinate
occupying power." This was still many years prior to the signing or
coming into force of the post-war peace treaty, which was the San
Francisco Peace Treaty (SFPT).
4
The February 28, 1947 events in "Japan" (i.e.
Japanese territory) occurred during a period of
belligerent occupation under the paramount
authority of the United States as "principal
occupying power." Moreover, a period of "White
Terror" by the KMT authorities continued for
long after the April 28, 1952 legally-binding terms
of the SFPT, in which Japan ceded "Formosa and
the Pescadores."
5
This proxy massacre beginning February 27, 1947,
was not an authorized Act of State and ultimately the
USA bears the responsibility for the KMT actions on
Formosa in 1947. It weighs upon the burden of the US
conscience that any remaining war crimes of the KMT
acting in their capacity as military governors fulfilling the
local functions of the Formosan government (from
October 25, 1945 to May 20, 2000) be prosecuted by a
US Military Commission, often called an "Article 2 Court“
for areas under United States Military Government.
6
Otherwise, political supporters
of the International Criminal
Court may find "jurisdiction“
to bring cases against the ROC
and even possibly the US policy
supporters of the ROC
government in the post WWII
period.
7
Thus it is imperative that the jurisdiction of SFPT
"war crimes" be closed by the USA for the
protection of US interests in Taiwan as well as
the protection of all US foreign policy makers
effectively connected with these KMT human
rights abuses and war crime atrocities committed
within this territorial jurisdiction of this SFPT
cession.
8
Under the US Constitution, cases concerning the
rights of US citizens in the Taiwan cession will
require the creation of the US Court of Taiwan.
Taiwan "island citizens" will continue to use the
local court system. Whether the US Court of
Taiwan will have jurisdiction over war crimes,
or a separate tribunal will be established for that
purpose, is clearly open to further discussion.
9
Reference is made to William E. Birkhimer, Military
Government and Martial Law, 3rd edition (1914), Chapter
IX "Laws Obligatory Within Occupied Territory", Section
141 "Plenary power, appoint war courts, judicially settled":
Thus it has been solemnly determined that the authority
of the President, and of commanders under him, for the
establishment of courts in conquered territory is complete,
limited only by the exigencies of service and the laws of
war; that such courts, if given jurisdiction by the power
bringing them into existence, properly may take
cognizance of questions, military, criminal, and civil . . . .
10
In Ex parte Quirin (1942), the US Supreme Court
held that "The act of Congress in providing for the
trial before military tribunals of offenses against
the law of war is sufficiently definite, although
Congress has not undertaken to codify or mark the
precise boundaries of the law of war, or to enumerate
or define by statute all the acts which that law
condemns.''
11
For territorial cessions, the legal principle that "the
military government of the principal occupying power
continues past the time when the peace treaty comes into
force" is discussed and illustrated in many US Supreme
Court cases. The earliest of these is perhaps Cross v.
Harrison (1853), which explains the situation of the
California territory after the Mexican American War.
Also see Dooley v. U.S. (1901), DeLima v. Bidwell
(1901), and Santaigo v. Nogueras (1909).
12
From 1952 to the present, there has been no
announcement of the end of United States
Military Government (USMG) in Taiwan. By
contrast, the end of USMG jurisdiction in
Puerto Rico, Guam, Cuba, and the
Philippines was made by US presidential
proclamation. Hence, today, Taiwan is still under
the jurisdiction of USMG.
13
The laws of war are applicable
in areas under
military government.
Moreover, the US Supreme Court has continually held
that "The jurisdiction of military authorities, during or
following hostilities, to punish those guilty of offenses
against the laws of war is long-established."
14
More information :
http://www.taiwanadvice.com/declare.htm
http://www.taiwanbasic.com/taiwan/tda5.htm
Taiwan Defense Alliance
A New Look at Taiwan's International Legal Position
-- new research based on the laws of war
Taiwan Defense Alliance
H Research Group
By Richard Hartzell, Jeffrey Geer, & Roger C. S. Lin
Edited by Audrey Deng (Contact me)