Commentary onCommentary on FM 27-10: The Law of Land WarfareFM 27-10: The Law of Land Warfare    

in relation to the Taiwan status issuein relation to the Taiwan status issue  

US Army Field ManualUS Army Field Manual

contains the laws of war contains the laws of war as recognized by the United States.as recognized by the United States.

FM 27-10FM 27-10

Local Governments under Duress Local Governments under Duress andand

Puppet GovernmentsPuppet Governments

Chapter 6: OCCUPATION, paragraph 366Chapter 6: OCCUPATION, paragraph 366

For over thirty years, US Commander in Chief has For over thirty years, US Commander in Chief has been been

the ringmaster of a three-ring circus called the "One the ringmaster of a three-ring circus called the "One China Policy." While it is a clever riddle of foreign China Policy." While it is a clever riddle of foreign

policy policy to keep the participants in a quandary as they attempt to keep the participants in a quandary as they attempt

to to peacefully resolve the final status of Taiwan, the legal peacefully resolve the final status of Taiwan, the legal circumstances of the US being the paramount circumstances of the US being the paramount

authority authority and having the ROC continuing as the designated local and having the ROC continuing as the designated local administrative authority is the creation of an illegal administrative authority is the creation of an illegal situation of possible proxy occupation. situation of possible proxy occupation.

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Major errors in the post-WWII handing of the Major errors in the post-WWII handing of the

Taiwan question in late 1945 and early 1946 are (1)Taiwan question in late 1945 and early 1946 are (1)

the announcement of October 25, 1945, as "Taiwan the announcement of October 25, 1945, as "Taiwan

Retrocession Day," (2) the mass naturalization of Retrocession Day," (2) the mass naturalization of

Taiwanese persons as Republic of China (ROC) Taiwanese persons as Republic of China (ROC) citizens, citizens,

and (3) (in August 1951) the imposition of mandatory and (3) (in August 1951) the imposition of mandatory

military conscription laws over native Taiwanese military conscription laws over native Taiwanese persons. persons.

Such actions in areas under belligerent occupation Such actions in areas under belligerent occupation

constitute war crimes. constitute war crimes. 2

During the 1940's, the US was still officially sponsoring During the 1940's, the US was still officially sponsoring the Republic of China (ROC) as the "legal government of the Republic of China (ROC) as the "legal government of China." The origin of the Taiwan question began with China." The origin of the Taiwan question began with General Douglas MacArthur's early September 1945 General Douglas MacArthur's early September 1945 directions to Chiang Kai-shek to go to Taiwan and accept directions to Chiang Kai-shek to go to Taiwan and accept the surrender of Japanese troops. The Chinese Civil War the surrender of Japanese troops. The Chinese Civil War period of the late 1940's culminated in the late 1949 period of the late 1940's culminated in the late 1949 Chinese Nationalist (KMT) retreat to Taiwan and its Chinese Nationalist (KMT) retreat to Taiwan and its degeneration into the status of a "government-in-exile". degeneration into the status of a "government-in-exile". Meanwhile, the People's Republic of China was founded Meanwhile, the People's Republic of China was founded on October 1, 1949.on October 1, 1949.

3

During the 1945-47 period, the USA officially maintained about During the 1945-47 period, the USA officially maintained about 50,000 U.S. Marines in the China mainland to defend the ROC 50,000 U.S. Marines in the China mainland to defend the ROC against the Chinese Communist Party (CCP) and its Russian against the Chinese Communist Party (CCP) and its Russian backers. As conditions in Manchuria further deteriorated and the backers. As conditions in Manchuria further deteriorated and the CCP was coming to power, the KMT secured their base on CCP was coming to power, the KMT secured their base on Formosa by initially massacring over 30,000 local residents (and Formosa by initially massacring over 30,000 local residents (and more in the following years) whom were still internationally more in the following years) whom were still internationally regarded as being "Japanese nationals" by the legal fact that during regarded as being "Japanese nationals" by the legal fact that during that era Taiwan was still part of "Japan," and the ROC military that era Taiwan was still part of "Japan," and the ROC military troops in Taiwan were merely fulfilling the role of a "subordinate troops in Taiwan were merely fulfilling the role of a "subordinate occupying power." This was still many years prior to the signing or 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 coming into force of the post-war peace treaty, which was the San Francisco Peace Treaty (SFPT).Francisco Peace Treaty (SFPT).

4

The February 28, 1947 events in "Japan" (i.e. The February 28, 1947 events in "Japan" (i.e. Japanese territory) occurred during a period of Japanese territory) occurred during a period of belligerent occupation under the paramount belligerent occupation under the paramount authority of the United States as "principal authority of the United States as "principal occupying power." Moreover, a period of "White occupying power." Moreover, a period of "White Terror" by the KMT authorities continued for Terror" by the KMT authorities continued for long after the April 28, 1952 legally-binding terms long after the April 28, 1952 legally-binding terms of the SFPT, in which Japan ceded "Formosa and of the SFPT, in which Japan ceded "Formosa and the Pescadores."the Pescadores."

5

This proxy massacre beginning February 27, 1947,This proxy massacre beginning February 27, 1947,was not an authorized Act of State and ultimately the was not an authorized Act of State and ultimately the USA bears the responsibility for the KMT actions on USA bears the responsibility for the KMT actions on Formosa in 1947. It weighs upon the burden of the US Formosa in 1947. It weighs upon the burden of the US conscience that any remaining war crimes of the KMT conscience that any remaining war crimes of the KMT acting in their capacity as military governors fulfilling acting in their capacity as military governors fulfilling

the the local functions of the Formosan government (from local functions of the Formosan government (from October 25, 1945 to May 20, 2000) be prosecuted by aOctober 25, 1945 to May 20, 2000) be prosecuted by aUS Military Commission, often called an "Article 2 US Military Commission, often called an "Article 2

Court“Court“for areas under United States Military Government. for areas under United States Military Government.

66

Otherwise, political Otherwise, political supporters supporters

of the International Criminal of the International Criminal

Court may find "jurisdiction“Court may find "jurisdiction“

to bring cases against the to bring cases against the ROC ROC

and even possibly the US and even possibly the US policy policy

supporters of the ROC supporters of the ROC

government in the post WWII government in the post WWII

period. period.    

7

Thus it is imperative that the jurisdiction of SFPT Thus it is imperative that the jurisdiction of SFPT

"war crimes" be closed by the USA for the "war crimes" be closed by the USA for the

protection of US interests in Taiwan as well as protection of US interests in Taiwan as well as

the protection of all US foreign policy makers the protection of all US foreign policy makers

effectively connected with these KMT human effectively connected with these KMT human

rights abuses and war crime atrocities committed rights abuses and war crime atrocities committed

within this territorial jurisdiction of this SFPT within this territorial jurisdiction of this SFPT cession.cession.

8

Under the US Constitution, cases concerning the Under the US Constitution, cases concerning the

rights of US citizens in the Taiwan cession will rights of US citizens in the Taiwan cession will

require the creation of the US Court of Taiwan. require the creation of the US Court of Taiwan.

Taiwan "island citizens" will continue to use the Taiwan "island citizens" will continue to use the

local court system. Whether the US Court of local court system. Whether the US Court of

Taiwan will have jurisdiction over war crimes, Taiwan will have jurisdiction over war crimes,

or a separate tribunal will be established for that or a separate tribunal will be established for that purpose, is clearly open to further discussion.purpose, is clearly open to further discussion.

9

Reference is made to William E. Birkhimer, Reference is made to William E. Birkhimer, Military Military Government and Martial LawGovernment and Martial Law, 3rd edition (1914), Chapt, 3rd edition (1914), Chapt

er er IX "Laws Obligatory Within Occupied Territory", SectioIX "Laws Obligatory Within Occupied Territory", Sectio

n n 141 "Plenary power, appoint war courts, judicially settle141 "Plenary power, appoint war courts, judicially settle

d":d":

Thus it has been solemnly determined that the authority Thus it has been solemnly determined that the authority of the President, and of commanders under him, for the of the President, and of commanders under him, for the establishment of courts in conquered territory is complete, establishment of courts in conquered territory is complete, limited only by the exigencies of service and the laws of limited only by the exigencies of service and the laws of war; that such courts, if given jurisdiction by the power war; that such courts, if given jurisdiction by the power bringing them into existence, properly may take bringing them into existence, properly may take cognizance of questions, military, criminal, and civil . . . . cognizance of questions, military, criminal, and civil . . . .

10

In Ex parte Quirin (1942), the US Supreme Court In Ex parte Quirin (1942), the US Supreme Court held that "The act of Congress in providing for the held that "The act of Congress in providing for the trial before military tribunals of offenses against trial before military tribunals of offenses against the law of war is sufficiently definite, although the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerprecise boundaries of the law of war, or to enumer

ate ate or define by statute all the acts which that law or define by statute all the acts which that law condemns.'' condemns.'' 11

For territorial cessions, the legal principle that "the For territorial cessions, the legal principle that "the military government of the principal occupying power military government of the principal occupying power continues past the time when the peace treaty comes icontinues past the time when the peace treaty comes i

nto nto force" is discussed and illustrated in many US Supreme force" is discussed and illustrated in many US Supreme Court cases. The earliest of these is perhaps Cross v. Court cases. The earliest of these is perhaps Cross v. Harrison (1853), which explains the situation of the Harrison (1853), which explains the situation of the California territory after the Mexican American War. California territory after the Mexican American War.

Also see Dooley v. U.S. (1901), DeLima v. Bidwell Also see Dooley v. U.S. (1901), DeLima v. Bidwell (1901), and Santaigo v. Nogueras (1909). (1901), and Santaigo v. Nogueras (1909).

12

From 1952 to the present, there has been From 1952 to the present, there has been no announcement of the end of United no announcement of the end of United States Military Government (USMG) in States Military Government (USMG) in Taiwan. By contrast, the end of USMG Taiwan. By contrast, the end of USMG jurisdiction in Puerto Rico, Guam, Cuba, jurisdiction in Puerto Rico, Guam, Cuba, and the Philippines was made by US and the Philippines was made by US presidential proclamation. Hence, today, presidential proclamation. Hence, today, Taiwan is still under the jurisdiction Taiwan is still under the jurisdiction of USMG. of USMG.

13

The laws of war are applicableThe laws of war are applicablein areas under in areas under

military government.military government.

Moreover, the US Supreme Court has Moreover, the US Supreme Court has continually held continually held

that "The jurisdiction of military that "The jurisdiction of military authorities, during or authorities, during or

following hostilities, to punish those guilty following hostilities, to punish those guilty of offenses of offenses

against the laws of war is long-against the laws of war is long-established."established."

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More information :More information :

http://www.taiwanadvice.com/declare.hthttp://www.taiwanadvice.com/declare.htmm

http://www.taiwanbasic.com/taiwan/tdahttp://www.taiwanbasic.com/taiwan/tda5.htm5.htm

Taiwan Defense Alliance

A New Look at Taiwan's International Legal Position

-- new research based on the laws of war

Taiwan Defense AllianceTaiwan Defense Alliance

H Research GroupH Research Group By Richard Hartzell, Jeffrey Geer, & Roger C. S. Lin

Edited by Audrey Deng (Contact me)